UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A.  B.  RE?-         .?r, 

Attorney  a,L  Law 

SANTA  FE,  N.  M. 
Received .,. 


MANUAL 


STATE  AND  FEDERAL 


BY 

NICHOLAS  H.  DOSKER 

Of  the  Louisville,  Ky.,  Bar 

AUTHOR 

Kentucky  Workmen's  Compensation  Law 
Annotated  and  Explained 


PUBLISHERS 

THE  BALDWIN  LAW  BOOK  CO. 

Incorporated 

LOUISVILLE,  KENTUCKY 
1917 


rlf-. 


COPYRIGHT  1917 

BY 
THE  BALDWIN  LAW  BOOK  CO. 

Incorporated 
ALL  RIGHTS  RESERVED 


PREFACE. 


The  Acts  of  the  various  States,  while  similar  as  to  the 
basic  principles  involved,  vary  as  to  detail  and  manner  of 
operation.  It  is  self-evident  that  the  text  of  the  Act  of  any 
State,  and  the  decisions  of  the  courts,  boards  or  commis- 
sions construing  it,  are  first  to  be  consulted.  But  there  are 
certain  provisions,  similar  in  principle  if  not  in  exact  phrase- 
^  ology,  which  are  common  to  the  majority  of  Acts  now  in 
force.  They  seem  to  be  the  storm-centers  out  of  which 
the  greater  portion  of  litigation  under  Workmen's  Compen- 
^-  sation  Acts  has  arisen. 

This  is  not  intended  to  be  an  encyclopaedic  treatment 
f ,  of  the  general  subject  of  Workmen's  Compensation.  It  is 
~37considered  that  an  attempt  to  reconcile  the  Acts  in  detail 
would  be  confusing  rather  than  helpful. 

Practically  all  of  the  decisions  of  courts  of  last  resort, 
and  some  of  those  of  boards  or  commissions  are  collected 
and  grouped  in  such  a  way  as  it  is  expected  will  prove  most 
useful  for  easy  reference.  Whenever  in  keeping  with  the 
plan  of  this  work  the  facts  upon  which  a  decision  is  based 
and  the  exact  language  of  the  Court  on  the  point  involved 
are  quoted  to  illustrate  the  point  under  consideration. 

The  Federal  Act  of  1916  is  printed  in  full  and  annotated 
wherever  applicable,  with  the  decisions  of  the  Solicitor  for 
the  Department  of  Labor.  This  book  is  interleaved  with 
blank  pages  for  the  insertion  of  additional  authorities  so 
that  it  can  be  kept  up  to  date.  It  is  as  the  name  signifies, 
a  manual  of  compensation  law,  and  it  is  offered  with  the 
hope  that  it  will  facilitate  investigation  of  this  new  and 
rapidly  widening  field  of  litigation. 

Louisville,  Ky.,  June  1,  1917.  N.  H.  D. 


INTRODUCTION 


Von  Jhering  in  The  Struggle  for  Law  says:  "All  of 
the  great  achievements  which  the  history  of  the  law  has  to 
record — the  abolition  of  slavery,  of  serfdom,  the  freedom 
of  landed  property,  of  industry,  of  conscience — have  had  to 
be  won  by  the  most  violent  struggles,  which  often  lasted  for 
centuries.  Not  infrequently  streams  of  blood  and  every- 
where rights  trampled  under  foot  mark  the  way  which  law 
has  traveled  during  such  conflict.  For  the  law  is  a  Saturn 
devouring  his  own  children.  The  law  can  renew  its  youth 
only  by  breaking  with  its  own  past." 

Great  and  sudden  changes  in  the  body  of  law  have 
usually  been  ushered  in  by  great  national  or  industrial 
cataclysms.  In  the  brief  space  of  seven  years,  an  enormous 
branch  of  the  law  has  been  uprooted  bodily  in  two-thirds 
of  the  United  States  and  supplanted  by  an  entirely  new 
system  of  rules  and  remedies.  I  refer  to  the  substitution 
of  Workmen's  Compensation  Acts  for  the  Law  of  Negli- 
gence, as  touching  the  relation  of  Master  and  Servant.  So 
tremendous  is  the  impetus  this  movement  has  gathered 
that  it  is  not  a  far  stretch  of  the  imagination  to  say  that 
the  next  decade  will  find  the  law  of  Master  and  Servant  a 
memory.  Great  as  has  been  this  change,  the  accomplish- 
ment of  it  has  been  effected  without  a  great  struggle. 

Negligence,  as  developed  under  the  common  law,  was 
regarded  in  the  nature  of  a  crime.  It  was  a  personal  mat- 
ter between  the  Master  and  the  Servant.  The  one  sought 
to  punish  the  other  by  suing  for  damages.  For  this  reason, 
until  the  passage  of  the  Lord  Campbell's  act,  an  action  for 
negligence  died  with  the  person.  There  were  certain  de- 
grees of  negligence  and  for  certain  flagrant  kinds,  punitive 
as  well  as  compensatory  damages  were  allowed.  There  is 
still  in  every  action  for  damages  this  quasi  criminal  attri- 


VI  MANUAL  OF  COMPENSATION  LAW 

bute  of  negligence.  The  great  common  law  defenses — the 
doctrines  of  contributory  negligence,  fellow  servant,  and 
assumed  risk,  were  gradually  developed.  They,  as  well  as 
the  law  of  primary  negligence,  were  added  to,  subtracted 
from  and  qualified  and  modified  until  the  original  doctrines 
were  almost  lost  in  the  maze  of  court  decisions  concerning 
them.  Truly  can  it  be  said  of  these  doctrines,  'What  crimes 
have  been  committed  in  thy  name.'  The  purpose  of  the 
foregoing  is  merely  to  show  that  the  very  theory  of  the  law 
of  Master  and  Servant  is  bound  to  create  friction  between 
them.  Where  there  is  injustice  on  the  one  side,  the  other 
is  likely  to  resort  to  unfair  tactics  to  retaliate,  and  thus 
the  courts,  having  the  enforcement  of  this  branch  of  the 
law,  have,  of  recent  years,  become  but  a  new  arena  for  the 
bitter  struggle  between  capital  and  labor.  The  abuses,  the 
injustices,  the  inequalities  of  the  Law  of  Master  and  Ser- 
vant are  the  direct  cause  for  the  passage  of  Workmen's 
Compensation  Acts.  It  is  true  that  these  laws  are  rather 
the  enactment  of  the  principles  of  social  science  and  eco- 
nomics than  a  development  of  law  as  we  have  grown  used 
to  it.  They  are  indeed  an  important  development  of  the 
use  of  the  police  powers  of  the  State. 

The  vast  industrial  growth  in  this  country  has  been 
shadowed  by  an  ever  increasing  yearly  toll  of  deaths  and 
of  maimed  and  disabled  workmen,  a  strikingly  small  per 
cent  of  whom  were  under  the  law  compensated  in  any 
measure  whatever.  Employers'  Liability  Laws  produced 
only  a  negligible  improvement.  Commissions  were  ap- 
pointed in  various  States  to  investigate  conditions,  and  the 
mean  result  of  all  of  their  findings  is  rather  startling.  This 
result  is  well  put  by  Wayne  C.  Williams,  a  member  of  the 
Industrial  Commission  of  Colorado:  "Only  about  one-half 
of  the  suits  brought  ever  result  in  any  recovery,  and  less 
than  one-third  of  the  suits  brought  (when  death  occurs) 
ever  bring  a  verdict  of  over  $500.00.  Only  about  thirteen 
per  cent  of  the  injuries  that  occur  in  industry  are  ever  com- 


INTRODUCTION  VII 

pensated  through  law  suits,  from  fifty  to  eighty  per  cent 
receive  nothing  whatever." 

A  great  number  of  things  contribute  to  the  causes  of 
injuries.  Sometimes  the  employer  is  entirely  at  fault, 
sometimes  the  workman,  and  sometimes  both  are  at  fault. 
But  no  matter  how  careful  the  employer  or  the  employee  is, 
or  how  many  regulations  or  laws  for  the  prevention  of  acci- 
dents are  made,  the  fact  remains  that  statistics  show  that 
nearly  fifty-five  per  cent  of  the  accidents  are  the  result  of 
the  natural  hazard  of  the  business.  It  certainly  is  not  fair 
for  the  employee  to  bear  the  financial  loss  resulting  from 
the  natural  hazard  of  the  business  in  which  he  is  engaged ; 
neither  is  it  fair  for  the  employer  to  assume  this  loss  en- 
tirely. Workmen's  Compensation  Acts  are  based  upon  the 
theory  that  the  extra  cost  due  to  their  operation  is  ulti- 
mately borne  by  society  at  large.  It  was  well  said  in  an 
editorial  in  The  Outlook  of  March  1,  1913 :  "When  a  ma- 
chine is  injured  in  the  course  of  its  use,  the  owner  of  the 
machine  bears  the  cost  of  the  injury  and  charges  it  to  the 
expense  of  production,  for  which  he  receives  payment  as  he 
sells  his  goods.  When,  however,  a  workman  is  injured  in 
the  course  of  his  employment,  the  cost  of  the  injury  comes 
upon  him,  who  can  ill  afford  to  bear  it ;  and  if  his  injury  is 
serious,  resulting  in  long  incapacity  for  work,  or  in  death, 
his  family  is  drafted  into  that  great  army  of  dependents 
that  is  a  reproach  to  our  civilization.  There  is  no  reason 
that  common  sense  can  accept  why  the  cost  in  human  effi- 
ciency and  human  life  of  the  production  of  the  things  that 
people  need  should  not  be  charged  to  the  account  of  that 
production,  just  as  is  charged  the  cost  of  injury  to  ma- 
chinery." 

That  inequalities  among  those  injured  existed  under  the 
old  system  is  patent  to  even  a  casual  observer.  Some  men 
badly  injured  without  any  fault  on  their  part  have  received 
nothing  and  others  with  practically  no  injuries  have, 
through  fraud  or  perjury,  received  many  times  what  they 
were  entitled  to.  Under  the  contingent  system  of  fees  in 


VIII  MANUAL  OF  COMPENSATION   LAW 

personal  injury  cases,  attorneys  have  almost  universally 
received  far  more  than  their  just  share  of  the  amount  re- 
covered by  persons  injured.  There  can  be  no  question  of 
the  fact  that  the  old  system  was  bad.  This  was  long  ago 
recognized  abroad,  but  it  has  only  been  in  the  last  few 
years  that  our  public  conscience  has  been  aroused  on  this 
subject.  The  successful  experiments  of  Europe  with  work- 
men's compensation  laws  led  to  an  attempt  to  relieve  the 
situation  here  by  similar  laws.  The  result  has  been  that 
compensation  laws  have  been  passed  in  thirty-two  States 
and  two  Territories,  comprising  over  eighty  per  cent  of  the 
total  population  of  the  United  States,  and  in  twelve  other 
States  steps  have  been  taken  looking  forward  to  early  enact- 
ment. 

The  workmen's  compensation  idea  was  first  tried  out  in 
Germany.  In  1884  it  was  in  general  operation  there.  The 
plan  has  been  enlarged  and  developed  until  now  they  have 
sickness,  accident  and  disability  insurance  all  of  which  is 
paid  for  by  the  employers  and  the  employees,  who  are  com- 
pelled to  contribute  to  a  fund  which  is  managed  by  officers 
chosen  from  the  employing  and  working  classes.  The  whole 
system  is  under  government  supervision. 

In  England  various  attempts  were  made  to  introduce 
this  system,  but  it  was  not  until  1&97  that  a  law  was  passed 
and  became  effective.  There  the  plan  is  different  from  what 
it  is  in  Germany  and  the  benefits  of  the  law  are  adminis- 
tered by  the  employers  direct  or  through  insurance  com- 
panies who  guarantee  their  risk  under  the  law. 

In  this  country  various  States  have  adopted  different 
plans.  In  almost  every  instance  the  law  is  administered  by 
Industrial  Boards.  The  benefits  granted  by  the  acts  are 
very  similar,  differing  chiefly  in  the  per  cent  of  average 
weekly  wages  paid  to  injured  workmen;  but  the  methods 
by  which  the  payment  of  these  benefits  is  guaranteed,  fall 
into  three  different  groups.  First,  where  there  is  a  monop- 
oly by  stock  insurance  companies;  second,  where  there  is 
a  monopoly  of  State  funds — commonly  termed  State  Insur- 


INTRODUCTION  IX 

ance — where  the  State  finances  the  operation  of  the  act 
out  of  its  treasury,  and  third,  where  there  is  competition 
between  State  funds,  stock  companies,  mutuals,  reciprocals, 
inter-insurers  or  some  combination  of  these  insurance 
carriers. 

Workmen's  compensation  acts  undoubtedly  very  ma- 
terially reduce  the  number  of  suits  for  damages  growing 
out  of  the  relation  of  master  and  servant;  and,  therefore, 
their  operation  affects,  in  a  measure,  the  business  of  a 
large  body  of  lawyers.  However,  affected  or  unaffected, 
the  bar  as  a  whole  should,  and  I  think  does  stand  for  any 
laws  which  tend  to  reduce  industrial  strife  and  increase  the 
sum  total  of  human  prosperity  and  happiness. 

NICHOLAS  H.  DOSKER. 


TABLE  OF  CONTENTS 


CHAPTER  I. 

THE  NATURE  OF  THE  RELATION  OF  EMPLOYER  AND 
EMPLOYEE. 

Section.  Page. 

1.  Who  are  employers   3 

2.  Contract  of  employment  necessary 4 

3.  A  loaned  employee 5 

4.  A  receiver  as  an  employer 5 

5.  An  infant  as  an  employer. 6 

6.  Employers  of  less  than  five  under  Connecticut  act 6 

7.  Administrator  as  employer 7 

7a.  Charitable  institutions  as  employers 7 

8.  Who  are  employees   8 

9.  Pieceworker  as   employee 8 

10.  Son  as  employee  of  father 9 

11.  Employment  obtained  by  misrepresentation 10 

12.  Extra-hazardous  employments    10 

13.  Employee  in  hazardous   employment  injured  in  non-haz- 

ardous  work    11 

14.  One  department  of  business  hazardous 12 

15.  General  illustrations  of  hazardous  employment 13 

16.  State,  county,  municipal  and  governmental  agencies 14 

17.  The  State  and  its  political  subdivisions  as  employers 15 

18.  Administrative  boards  of  State  as  employers 16 

19.  State  board  of  agriculture  as  employer 16 

20.  County  as  employer  17 

21.  A  sheriff  not  an  employee  of  State 17 

22.  Board  of  park  commissioners  as  employer 17 

23.  Town  or  contractor  as  employer 17 

24.  Pupil  in  manual  training  high  school  as  employee  of  city.  18 

25.  Board  of  public  w,orks  as  employer 18 

26.  Village  as  employer  of  citizen  assisting  marshal 18 

27.  Policemen  and  firemen  as  employees 18 

28.  Who  are  independent  contractors 20 

29.  An  independent  contractor  as  an  employee 20 

30.  Vaudeville  actress  as  independent  contractor 23 


XII  MANUAL  OF  COMPENSATION   LAW 

Section.  Page. 

31.  A  lather  as  independent  contractor 23 

32.  A  teamster  as  independent  contractor 23 

33.  A  whitewasher  as  independent  contractor 23 

34.  A  quarryman  as  independent  contractor 24 

35.  A  taxicab  driver  on  shares  as  independent  contractor 24 

36.  Relation  of  contractors  and  sub-contractors 24 

37.  Casual  employment  in  general 25 

38.  A  definition  of  "casual  employment" 26 

39.  Tests  as  to  whether  employment  is  casual  or  not 26 

40.  Employment  for  one  occasion  is  casual 27 

41.  Intermittent  employment  may  be  casual 28 

42.  Employment  for  an  indefinite  period  not  casual 29 

43.  Failure   to   stipulate   wages   does   not  make   employment 

casual  29 

44.  Acts  outside  line  of  duty  under  orders  of  superior  not 

casual  employment   30 

45.  "Employment  of  a  casual  nature" 30 

46.  English  and  American  acts  distinguished  as  to  casual  em- 

ployment   , 31 

47.  Employment  "casual  and  not  in  the  usual  course  of  the 

trade,  business,  profession  or  occupation" 33 

48.  Domestic  employment  33 

49.  Agricultural  employment   34 

50.  Compensation  acts  as  applied  to  employees  in  interstate 

commerce   37 

51.  Federal   employers'   liability   law 37 

52.  Staley,  Admx.,  etc.,  v.  Illinois  Central  R.  R.  Co 37 

53.  Winfield  v.  New  York  C.  &  H.  R.  R.  Co 38 

54    Admiralty  law  as  affected  by  compensation  acts 38 

55.  Elective  acceptance  of  compensation  acts 41 

56.  Employee  cannot  accept  where  the  employer  rejects  the 

act  42 

57.  Incomplete  compliance  with  act  by  employer — effect 43 

58.  Election  by  employee  within  thirty  days  after  passage  of 

act  44 

59.  Election  by  employee  thirty  days  prior  to  accident 44 

60.  A  notice  to  accept  or  reject  the  act  effective  until  with- 

drawn    41 

61.  Election  of  acts  of  two  different  States 45 

62.  Common  law  defenses  not  available  to  non-electing  em- 

ployer    45 

63.  Abrogation  of  common  law  defenses  does  not  violate  "due 

process  of  law"  amendment 48 


TABLE  OF  CONTENTS  XIII 

Section.  Page. 

64.  Allowing   defenses   to   certain   employers    while   denying 

them  to  others  not  unconstitutional 48 

65.  Common  law  actions  abolished.    Remedy  of  acts  exclusive  51 

66.  Election  of  acts  by  minors 55 

67.  Minors  made  sui  juris 56 

68.  Minors   in   prohibited  employments 56 

69.  Parents  right  of  action  for  loss  of  services  of  minor  elect- 

ing the  act  57 

70.  Employer  cannot  set  up  infancy  as  bar  to  action  for  com- 

pensation      58 

71.  Conclusiveness  of  claim  by  minor  for  compensation 58 

72.  Misrepresentation  of  age  by  minor  to  obtain  a  prohibited 

employment,  does  not  relieve  employer 59 

73.  Joint  voluntary  application  for  the  benefits  of  the  act 60 


CHAPTER  II. 
ACCIDENT,  INJURY  AND  DISEASE 

74.  Use  of  the  words  "accident"  and  "injury" 61 

75.  Meaning   of   "accident,"    generally 62 

76.  Meaning  of  "accident,"  within  the  acts 63 

77.  Meaning  of  "injury,"  within  the  acts 63 

78.  Injury,  accidental,  though  caused  by  negligence 64 

79.  Accident  must  occur  at  a  definite  time — occupational  dis- 

eases not  accidents 65 

80.  Meaning  of  phrase  "where  injury  is  proximately  caused  by 

accident"  66 

81.  Diseases  as  "accidents"  or  "injuries"  in  general 69 

82.  Traumatic   injury    72 

83.  Disease  without  accident  not  compensable 72 

84.  Occupational  diseases  as  injuries  within  the  act — Michigan 

view    73 

85.  Occupational  diseases  as  injuries  within  the  act — Massa- 

chusetts  view    74 

86.  Heart  disease  as  an  accident  under  the  English  act 74 

87.  Injury   aggravating  pre-existing   disease 76 

88.  Internal  rupture  as  accident 78 

88a.  Hernia  as  an  accident 80 

89.  Typhoid  fever  from  drinking  water  furnished  by  employer, 

as   accident 81 

90.  Ivy  poisoning  as  an  accident 83 


XIV  MANUAL  OF  COMPENSATION  LAW 

Section. 

91.  Nervous  shock  as  an  accident 84 

92.  Assault  as  an  accident 85 

93.  Assault  under  accident  insurance  policy 86 

94.  Overwork  as  an  accident 86 

95.  Accident  a  question  of  law  or  fact 86 

96.  Death  resulting  from  accidental  injury 87 

97.  Burden  of  proof  as  to  accident 87 

-98.  Accident  may  be  established  by  circumstantial  evidence..  88 


CHAPTER  III. 
ARISING  OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT. 

99.     In  general    90 

100.  Arising   "out  of"   and   "in   the   course   of"   employment — 

meaning    90 

101.  "Arising  out  of  and  in  the  course  of  employment"  under 

the    English   decisions 92 

102.  Accident  must  result  from  risk  reasonably  incident  to  em- 

ployment        93 

103.  Accidents  on  street   94 

104.  Before  or  after  working  hours  or  going  to  or  from  work. .     96 

105.  Going  to  lunch  or  preparing  to  go 101 

106.  Sportive  acts    105 

107.  Death  or  injury  by  lightning  or  other  act  of  God 107 

108.  Insanity  and  suicide    110 

109.  Seeking  toilet  facilities    112 

110.  Heat  and  cold   113 

111.  Frostbite 114 

112.  Sunstroke 115 

113.  Injuries    from    an    assault    by    fellow    employee    or  'third 

person  116 

114.  Injury  to  eyes 121 

115.  Going  to  assistance  or  rescue  of  fellow-employee 122 

116.  Acts   furthering  the  master's  business   or  protecting  his 

property    , 124 

117.  Disobedience  of  positive  instructions  or  enforced  rules . . .  127 

118.  Injury  developing  during  treatment  as  one  in  course  of 

employment 129 

119.  Employee  warming  himself  between  cars  in  leisure  time.  130 

120.  Workman  seeking  shelter  from  storm 132 

121.  Truck  driver  putting  up  a  horse .133 


TABLE  OF  CONTENTS  XV 

Section.  Page. 

122.  Cleaning  a  motorcycle  used  in  employer's  business 134 

123.  General   illustrations    concerning   injuries   arising   out   of 

and  in  the  course  of  employment 135 

124.  Burden   of   proof 138 

125.  May  be  established  by  circumstantial  evidence. 139 


CHAPTER  IV. 
DISABILITY. 

126.  In  general 141 

127.  Waiting   period 142 

128.  Kinds  of  disability  denned 142 

129.  Factors   in   earning   ability 143 

130.  A  nervous  or  hysterical  condition  as  disability     144 

131.  Temporary   total   disability 144 

132.  Inability  to  procure  work 146 

133.  Temporary  partial   disability    147 

134.  Permanent   total   disability 147 

135.  Incapacity  for  work 148 

136.  Loss  of  second  eye  where  first  was  lost  previously 149 

137.  Loss  of  second  hand  where  first  was  lost  previously 151 

138.  Failing  health  as  affecting  total  disability 153 

139.  Disability  for  particular  work — not  total 154 

140.  Permanent   partial    disability 157 

141.  Injuries  other  than  scheduled 158 

142.  Impairment  of  a  member  not  "loss". 158 

143.  Permanent  partial  disability  though  earning  power  unim- 

paired   \ 159 

144.  Concurrent  disability  from   different  injuries 160 

145.  Injuries  to  foot  'or  leg ; 163 

146.  Loss  of  hand  or  arm 164 

147.  Injury  to  fingers   166 

148.  Injuries  to  eyes 172 

149.  Injuries  to  the  ear 177 

150.  Disfigurement    178 


CHAPTER  V. 
AVERAGE  EARNINGS. 

151.  Average  earnings  as  basis  for  compensation  in  general...  180 

152.  Average  weekly  wages  as  a  question  of  fact 181 


XVI  MANUAL   OF   COMPENSATION   LAW 

Section.  Page. 

153.  General  income  as  affecting  earnings 181 

154.  Effect  of  "laying  off" 183 

155.  What  is  "seasonal  occupation" 184 

156.  Grade  of  employment  as  criterion  for  average  earnings . . .  184 

157.  Regularly  employed  in  a  higher  grade  of  work 185 

158.  Wages  earned  from  more  than  one  employer 185 

159.  When  weekly  wages  not  fixed  under  New  Jersey  act 187 

160.  Regulations  of  labor  unions  as  affecting  average  earnings  188 

161.  Idleness  as  a  result  of  normal  stoppage  of  work  or  general 

holidays  189 

162.  Various  outside  influences  affecting  earnings 189 

163.  Meaning  of  "average  weekly  wages,"  and  "full  time"....  191 


CHAPTER  VI. 
DEPENDENCY. 

164.  Dependency  in  general 193 

165.  Dependency  defined   194 

166.  Dependency  a  question  of  fact 195 

167.  "Actual   dependents"    196 

168.  Burden  of  proving  dependency 197 

169.  When   wholly    dependent 197 

170.  When  partly  dependent   199 

171.  The   award   of  a  wholly  dependent  person   as   a  vested 

interest   201 

172.  Adults  as  dependents  on  minors 203 

173.  Husband  and  wife,  parent  and  child 205 

174.  When  husband  and  wife  live  apart 206 

175.  Marriage  as  affecting  dependency 212 

176.  Alien   dependents 212 

177.  Effect  of  marriage  of  dependent 214 

178.  Effect  on  dependents  of  imprisonment  of  workman 214 

179.  Effect  on  dependents  of  release  given  by  employee 215 

180.  Payments  to  one  dependent  for  the  benefit  of  others 217 

181.  Payments   to   supposed   dependents ' 219 


CHAPTER  VII. 
TREATMENT  OF  INJURIES. 

182.  Reasons  underlying  provisions  for  medical  attention 221 

183.  First   aid    .  .  222 


TABLE  OF  CONTENTS  XVII 

Section.  Page. 

184.  Employer  must  furnish  medical  aid,  etc. — meaning 222 

185.  When  the  employer  can  select  his  own  physician — when 

the  employee  224 

186.  Change  in  treatment   225 

187.  Medical,  surgical  or  hospital  fees 225 

188.  Physicians  charges  based  on  employees  ability  to  pay...  226 

189.  Employer  must  have  knowledge  of  injury  and  reasonable 

opportunity  to   furnish   treatment 22S 

190.  Nursing  where  not  specified  included  in  "medical  and  sur- 

gical treatment" 231 

191.  Nursing  gratuitously  by  members  of  household  not  "rea- 

sonable expense  incurred"   232 

192.  Reasons  for  privilege  of  physical  examination 234 

193.  Examination  must  be  reasonable — question  of  fact 234 

194.  "Refusal  or  obstruction" 235 

195.  What  is  unreasonable  refusal  to  submit  to  surgical  op- 

eration or  follow  medical  advice 236 

196.  When  employee's  conduct  is  reasonable 239 

197.  Malpractice  as  affecting  compensation 241 


CHAPTER  VIII. 
NOTICES  OF  AND  CLAIMS  FOR  INJURIES. 

198.  Employee,  or  some  one  for  him,  must  give  notice  of  acci- 

dent      245 

199.  Form  of  notice  or  claim 246 

200.  Who  may  make   claim 246 

201.  When  the  manner  of  giving  notice  is  sufficient 248 

202.  When  the  employer  has  "knowledge  of  the  injury" 249 

203.  Meaning  of  "mistake  or  other  reasonable  cause" 251 

204.  When  an  employer  is  "misled  to  his  injury" 254 

205.  When  the  employer  is  not  prejudiced 258 

206.  Limitation  of  proceedings  for  compensation 259 


CHAPTER  IX. 
DEFENSES  TO  COMPENSATION. 

207.  Defenses   of  non-electing  employer 261 

208.  Defenses   of  electing  employer  against  non-electing  em- 

ployee        262 


XVIII  MANUAL  OF  COMPENSATION   LAW 

Section.  Page. 

209.  Defenses  of  electing  employer  against  electing  employee  262 

210.  Relation  of  employer  and  employee  must  exist 263 

211.  There  must  be  an  accident  or  injury 263 

212.  Must  arise  out  of  and  in  the  course  of  employment 263 

213.  Refusal  to  accept  employment  as  defense 263 

214.  Refusal  to  allow  physical  examination 264 

215.  Refusal  to  submit  to  surgical  operation  or  follow  medical 

advice    264 

216.  Failure  to  give  notice  of  injury 264 

217.  Limitations 264 

218.  Willful  self-inflicted  injury  as  a  defense 265 

219.  Willful  misconduct  as  a  defense 265 

220.  A  reduction,  or  forfeiture  of  compensation  for  disobedience 

of  rules 268 

221.  Willful  negligence  of  employee 271 

222.  Intoxication  as  a  defense 272 

223.  Malingering  as  a  defense 277 

224.  Malingering  or  hysteria 280 

225.  Burden   of   proof .  280 


CHAPTER  X. 
GENERAL  TOPICS. 

226.  Administrative   boards   or  commissions 283 

227.  Meaning  of  "all  questions  arising" 285 

228.  The  board  may  make  rules 286 

229.  Findings  of  fact  conclusive  on  appeal 287 

230.  Findings  of  law  not  conclusive  on  appeal 290 

231.  Rules   of   evidence    290 

232.  Right  of  board  to  hear  evidence 292 

233.  Letters  rogatory  as  evidence 294 

234.  Death  resulting  from  injury 295 

235.  Proof  of  liability  for  compensation 295 

236.  Agreements — settlements   or  releases 296 

237.  Releases   297 

238.  Failure  to  agree  must  precede  application  for  hearing...   298 

239.  Lump  sum  settlements   299 

240.  Appeals  in  general   304 

241.  Time  limit  on  appeal    304 

242.  Review  of  court  is  limited 305 

243.  Employer  insured  in  New  York  State  Fund  has  no  appeal.   306 


TABLE   OF  CONTENTS  XIX 

Section.  Page. 

244.  Insurer  cannot  appeal  on  distribution  of  payments  alone. ..  306 

245.  '  Injuries  caused  by  third  persons 307 

246.  Effect  when  both  employer  and  third  person  have  elected 

act  308 

247.  Rights  and  remedies  of  employer  against  third  person...  308 

248.  Effect  of  settlement  by  employee  with  third  persons 311 

249.  Burial    expenses    312 

250.  Deductions  from  compensation 313 

251.  Contracting  out   315 

252.  Right  of  compensation  as  prior  lien 315 

253.  Claims  for  compensation  cannot  be  assigned  or  attached..  316 

254.  Attorney's   fees    .' 316 

255.  Reports  of  accidents  by  employer 318 

256.  Deliberate  intention  to  produce  injury. 318 

257.  Willful  act  of  employer 319 

258.  "Willful  and  known  violation"  of  statute — Kentucky 322 

259.  Failure  to  comply  with  a  specific  statute — Kentucky 322 

260.  Compensation  not  barred  by  failure  of  action  at  law 324 

261.  Extra-territorial  effect  of  acts 325 

262.  Act  effective  outside  New  York 327 

263.  Act  not  effective  outside  of  Massachusetts 331 

264.  Theory — construction  of  acts 333 

265.  Constitutionality  of  acts    .333 


CHAPTER  XI. 
FEDERAL  ACT  OF  1916— ANNOTATED. 

266.  Development  of  federal  compensation  legislation 388 

267.  The  act  of  1916  supersedes  all  of  the  former  federal  acts. .  399 


SECTION  I. 
To  whom  the  act  applies 400 

268.  Who  is  an  employee  of  the  United  States 400 

269.  Employees  under  act  of  1908 400 

270.  What  is  a  "personal  injury" 403 

271.  The  use  of  "personal  injury"  in  act  of  1908 404 

272.  General  illustrations  of  "personal  injuries"  under  act  of 

1908 408 

273.  Meaning  of  "while  in  the  performance  of  his  duty" 412 


XX  MANUAL  OF   COMPENSATION   LAW 

Section.  Page. 

274.  Meaning  of  "in  the  course  of  employment"  under  act  of 

1908    413 

275.  Willful  misconduct   of  employee  as  proximate   cause   of 

injury 417 

276.  "Willful  misconduct"  under  the  act  of  1908 418 

277.  Employee's  intention  to  bring  about  the  injury 423 

278.  Intoxication  as  proximate  cause  of  injury  or  death 423 

SECTION  II. 
Waiting  period    423 

279.  Waiting  period  under  act  of  1908 424 

280.  The  day  when  the  injury  occurred  must  be  counted  as  the 

first   day  of  disability •. 424 

281.  The  days  of  disability  need  not  be  consecutive  days 425 

SECTION  III. 
Amount  of  compensation  for  total  disability 426 

SECTION  IV. 
Amount  of  compensation  for  partial  disability 426 

SECTION  V. 
No  compensation  where  suitable  work  is  refused 427 

SECTION  VI 
Maximum   and  minimum  compensation 427 

SECTION  VII. 
No  salary  or  pay  during  compensation  period 427 

SECTION  VIII. 
Annual  or  sick  leaves  added  to  period  of  compensation  428 

SECTION  IX. 
Medical  attention  immediately  after  injury 428 

SECTION  X. 
To  whom  compensation  is  payable  in  case  of  death. . .  429 

282.  Who  is  the  widow  of  an  employee 432 

283.  "Child  or  children"  includes  "illegitimate  children" 435 


TABLE  OF  CONTENTS  XX] 

Section.  Page 

284.  Adopted  child  43( 

285.  To  whom  compensation  of  children  with  surviving  parent 

is  paid   43' 

286.  A  foster-parent  by  legal  adoption  may  be  a  dependent 

parent    435 

287.  Dependency  a  question  of  fact.     Parents 431 

SECTION  XI. 
Burial  expenses  444 

SECTION  XII. 
How  monthly  pay  is  computed 445 

SECTION  XIII. 
How  monthly  wage  earning  capacity  is  computed 445 

SECTION  XIV. 
Lump  sum  settlements   445 

SECTIONS  XV,  XVI,  XVII. 
Written  notices  of  injury — when  and  how  to  be  given.  446 

SECTIONS  XVIII,  XIX,  XX. 
Claims  for  compensation,  when  and  how  made 446 

SECTIONS  XXI,  XXII,  XXIII. 
Medical  examinations  and  fees 447 

SECTION  XXIV. 
Immediate  superior  to  report  injuries 448 

SECTION  XXV. 
Assignments  void — compensation   exempt 448 

SECTIONS  XXVI,  XXVII. 
Injuries  caused  by  third  persons — procedure 448 

SECTIONS  XXVIII— XXXIII. 
United    States    employee's    compensation    commission 

organization,    powers    450 


XXII  MANUAL  OF  COMPENSATION  LAW 

Page. 

SECTION  XXXIV. 
Appropriation 452 

SECTION  XXXV. 
Employee's   compensation  fund 452 

SECTION  XXXVI. 
Commission  to  award  or  refuse  compensation 453 

SECTION  XXXVII. 
Commission  may  review  previous  order  or  award 453 

SECTION  XXXVIII. 

Payments  under  mistake  of  law  or  fact  may  be  recov- 
ered     453 

SECTION  XXXIX. 
Penalty  for  false  affidavit  or  claim 453 

SECTION  XL. 
Definitions   454 

SECTION  XLI. 

Repealing      clause — provisos — Panama      railroad — re- 
leases      454 

f 

SECTION  XLII. 

Employees  of  Panama  Canal  and  Panama  Railroad  Co.  455 


MANUAL  OF  COMPENSATION  LAW 


CHAPTER  I 

THE  NATURE  OF  THE   RELATION  OF 
EMPLOYER  AND   EMPLOYEE 

Section. 

1.  Who  are  employers. 

2.  Contract  of  employment  necessary. 

3.  A  loaned  employee. 

4.  A  receiver  as  an  employer. 

5.  An  infant  as  an  employer. 

6.  Employers  of  less  than  five  under  Connecticut  act. 

7.  Administrator  as  employer. 

7a.  Charitable  institutions  as  employers. 

8.  Who  are  employees. 

9.  Pieceworker  as  employee. 

10.  Son  as  employee  of  father. 

11.  Employment  obtained  by  misrepresentation. 

12.  Extra-hazardous  employments. 

13.  Employee  in  hazardous  employment  injured  in  non-hazardous 

work. 

14.  One  department  of  business  hazardous. 

15.  General  illustrations  of  hazardous  employment. 

16.  State,  county,  municipal  and  governmental  agencies. 

17.  The  State  and  its  political  subdivisions  as  employers. 

18.  Administrative  boards  of  State  as  employers. 

19.  State  board  of  agriculture  as  employer. 

20.  County  as  employer. 

21.  A  sheriff  not  an  employee  of  State. 

22.  Board  of  park  comm  ^sioners  as  employer. 

23.  Town  or  contractor  as  employer. 

24.  Pupil  in  manual  training  high  school  as  employee  of  city. 

25.  Board  of  public  works  as  employer. 

26.  Village  as  employer  of  citizen  assisting  marshal. 

27.  Policemen  and  firemen  as  employees. 

28.  Who  are  independent  contractors. 


2  MANUAL  OF  COMPENSATION  LAW 

Section. 

29.  An  independent  contractor  as  an  employee. 

30.  Vaudeville  actress  as  independent  contractor. 

31.  A  lather  as  independent  contractor. 

32.  A  teamster  as  independent  contractor. 

33.  A  'whitewasher  as  independent  contractor. 

34.  A  quarryman  as  independent  contractor. 

35.  A  taxicab  driver  on  shares  as  independent  contractor. 

36.  Relation  of  contractors  and  sub-contractors. 

37.  Casual  employment  in  general. 

38.  A  definition  of  "casual  employment." 

39.  Tests  as  to  whether  employment  is  casual  or  not. 

40.  Employment  for  one  occasion  is  casual. 

41.  Intermittent  employment  may  be  casual. 

42.  Employment  for  an  indefinite  period  not  casual. 

43.  Failure  to  stipulate  wages  does  not  make  employment  casual. 

44.  Acts  outside  line  of  duty  under  orders  of  superior  not  casual 

employment. 

45.  "Employment  of  a  casual  nature." 

46.  English  and  American  acts  distinguished  as  to  casual  employ- 

ment. 

47.  Employment  "casual  and  not  in  the  usual  course  of  the  trade, 

business,  profession  or  occupation." 

48.  Domestic  employment. 

49.  Agricultural  employment. 

50.  Compensation  acts  as  applied  to  employees  in  interstate  com- 

merce. 

51.  Federal  employees'  liability  law. 

52.  Staley,  Admx.,  etc.,  v.  Illinois  Central  R.  R.  Co. 

53.  Winfield  v.  New  York  C.  &  H.  R.  R.  Co. 

54.  Admiralty  law  as  affected  by  compensation  acts. 

55.  Elective  acceptance  of  compensation  acts. 

56.  Employee  cannot  accept  where  the  employer  rejects  the  act. 

57.  Incomplete  compliance  with  act  by  employer — effect. 

58.  Election  by  employee  within  thirty  days  after  passage  of  act. 

59.  Election  by  employee  thirty  days  prior  to  accident. 

60.  A  notice  to  accept  or  reject  the  act  effective  until  withdrawn. 

61.  Election  of  acts  of  two  different  States. 

62.  Common  law  defenses  not  available  to  non-electing  employer. 

63.  Abrogation  of  common  law  defenses  does  not  violate  "due  pro- 

cess of  law"  amendment. 

64.  Allowing  defenses  to  certain  employers  while  denying  them  to 

others  not  unconstitutional. 

65.  Common  law  actions  abolished.    Remedy  of  acts  exclusive. 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  3 

Section. 

66.  Election  of  acts  by  minors. 

67.  Minors  made  sui  juris. 

68.  Minors  in  prohibited  employments. 

69.  Parents  right  of  action  for  loss  of  services  of  minor  electing 

the  act. 

70.  Employer  cannot  set  up  infancy  as  bar  to  action  for  compen- 

sation. 

71.  Conclusiveness  of  claim  by  minor  for  compensation. 

72.  Misrepresentation  of  age  by  minor  to  obtain  a  prohibited  em- 

ployment, does  not  relieve  employer. 

73.  Joint  voluntary  application  for  the  benefits  of  the  act. 

COMPENSATION  LAW. 

§  1.  Who  Are  Employers. 

The  various  acts  have  many  different  provisions  con- 
cerning employments  covered.  It  is  practically  impossible 
to  make  a  general  statement  about  this  phase  of  the  acts 
and  it  is  difficult  to  even  group  them  with  any  degree  of 
accuracy.  The  statute  of  the  State  must  be  examined  to 
determine  whether  acceptance  of  the  act  in  a  particular 
employment  is  compulsory  or  elective  or  whether  the 
employment  is  specifically  exempted  from  the  operation 
of  the  law. 

It  can  be  said  that  generally  employers  having  less  than 
a  stipulated  number  of  employees,  usually  three  or  five,  are 
not  covered. 

In  a  number  of  States  only  the  hazardous  employments 
are  directly  subject  to  the  act,  but  in  most  of  those  States 
the  non-subject  employer  can  agree  with  the  employees  to 
accept  its  provisions. 

In  the  majority  of  the  States  having  these  laws,  all 
employments  are  subject  to  the  act  unless  they  are  especi- 
ally exempted.  Generally  domestic,  agricultural  and  casual 
employments  are  excepted,  and  often  those  having  less 
than  a  stipulated  number  of  employees.  In  many  States 
public  as  well  as  private  employments  are  covered,  but 
usually  public  officers  are  excluded.  In  some  States  only 


4  MANUAL  OF  COMPENSATION  LAW 

casual  employees  are  excepted,  and  in  others  one  or  two 
but  not  all  of  the  above  classes. 

The  acts  generally  exclude  employments  when  the  laws 
of  the  United  States  have  provided  a  rule  of  liability  for 
injuries  received  in  them.  Thus  accidents  to  employees  of 
railroads  engaged  in  interstate  commerce  are  not  within 
the  acts.  But  in  some  States  employees  engaged  in  an 
interstate  business  are  covered  if  the  act  by  which  the 
injury  was  received  was  of  a  purely  intrastate  nature. 

An  employer  within  the  meaning  of  workmen's  com- 
pensation acts  is  one  who  engages  the  services  of  a  work- 
man and  agrees  to  pay  him  therefor.  There  must  be  a 
contract  of  service,  within  the  meaning  of  that  term  at 
common  law. 

For  decisions  determining  the  existence  of  the  relation 
of  employer  and  employee  at  common  law,  see  Master  and 
Servant,  Cent.  Dig.,  §  1 ;  Dec.  Dig.,  §  1 ;  Words  and  Phrases, 
vol.  3,  pp.  2369-2377 ;  vol.  8,  p.  7649. 

§  2.  Contract  of  Employment  Necessary  Under  the  New 
Jersey  Compensation  Law. 

In  Kongo  v.  Waddington  &  Sons,  Inc.,  et  al.,  87  N.  J.  L. 
395,  94  Atl.  408,  9  N.  C.  C.  A.  402,  Kongo  was  originally 
employed  by  and  regularly  worked  for  Waddington  &  Sons, 
who  were  contracting  teamsters,  letting  out  their  teams  and 
drivers  by  the  day.  They  had  a  contract  with  Vanderbilt 
to  haul  material  for  him  at  a  fixed  price  per  team  per  day. 
Vanderbilt  did  not  pay  the  drivers,  but  if  objectionable  to 
him  Waddington  &  Co.  would  remove  them.  Vanderbilt 
directed  the  movements  of  the  teams.  After  working  ten 
days  in  this  manner,  on  the  Vanderbilt  job,  while  taking  on 
a  load  of  stone,  which  was  being  dumped  on  to  his  wagon  by 
a  steam  shovel  Kongo's  hand  was  caught  in  the  jaws  of  the 
shovel  and  injured. 

The  question  was  which  employer  was  liable  for  compen- 
sation. The  court  held  that  Waddington  &  Co.  were  liable 
and  dismissed  Vanderbilt,  holding  the  act  "inapplicable  to 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  5 

any  relation  of  master  and  servant  as  generally  understood 
at  common  law,  other  than  that  arising  out  of  the  contract 
between  the  master  and  the  servant,  whereby  the  servant 
engages  to  work  for  the  master,  and  the  master  on  his  part 
engages  to  pay  the  servant  for  such  work;  in  other  words, 
that  it  is  inapplicable  to  a  condition  of  things  where  a 
servant  employed  by  a  master  directly  is  required,  as  part 
of  his  contract .  of  employment,  to  work  for  some  other 
person  for  a  compensation  payable  not  to  the  servant  but 
to  the  immediate  master." 

§  3.  A  Loaned  Employee. 

In  Pigeon  v.  Employers'  Liability  Assurance  Corpora- 
tion, Ltd.,  216  Mass.  51,  102  N.  E.  932,  4  N.  C.  C.  A.  516: 
A  driver  in  the  employment  of  a  general  employer  was  sent 
by  his  employer  to  work  for  a  city  in  removing  street  sweep- 
ings, receiving  his  instructions  as  to  how  and  where  to  work 
from  the  city  superintendent.  He  used  his  employer's 
teams  and  was  directed  to  feed  and  water  them  and  was  in 
charge  of  them  until  returned  to  the  stable.  While  taking 
one  horse  to  a  watering  trough  it  ran  away  and  he  was 
fatally  injured.  The  question  was  whether  the  owner  of 
the  horse  or  the  city  was  his  "employer"  within  the  mean- 
ing of  the  act.  The  court  said :  "This  evidence  warranted 
the  finding  that  Shaw  did  not  lend  the  decedent  absolutely 
and  unqualifiedly  into  the  service  of  the  city  of  Springfield, 
but  he  retained  the  general  direction  of  his  conduct  except 
in  so  far  as  it  was  surrendered  to  the  city,  and  that  this 
retention  of  control  included  the  care  of  the  horses,  at  least 
to  the  extent  of  seeing  that  they  were  watered."  It  was 
held  that  Pigeon  was  in  the  service  of  Shaw. 

§  4.  A  Receiver  As  An  Employer. 

A  receiver  who  is  conducting  the  business  of  an  insolv- 
ent employer  is  the  employer  during  the  time  he  conducts 
the  business  and  must  make  payment  of  benefits  to  which 
injured  employees  are  entitled  under  the  act.  Wood  v. 
Camden  Iron  Works,  221  Fed.  1010. 


6  MANUAL  OF  COMPENSATION  LAW 

§  5.  An  Infant  As  An  Employer. 

An  infant  employer  can  not  evade  the  operation  of  the 
act  of  1908  on  account  of  infancy.  Re  Smith,  17  West  L. 
Rep.  (Can.)  550. 

§  6.  Employers  of  Less  Than  Five  Under  Connecticut  Act. 

Many  of  the  acts  provide  that  they  shall  have  no  appli- 
cation to  employers  of  less  than  a  certain  number  of  em- 
ployees. This  is  the  only  court  decision  regarding  the 
liability  of  employers  of  less  than  five. 

Mrs.  Alvah  Bay  on  was  injured  on  May  7,  1914,  while 
shaking  a  rug  in  the  course  of  her  employment  with  John 
G.  Buckley.  The  commissioner  of  compensation  made  an 
award  to  her,  and  when  the  employer  appealed,  the  superior 
court  sent  the  case  to  the  supreme  court  for  decision  on  an 
agreed  statement  of  facts.  The  employer  claimed  that 
he  was  not  liable  for  compensation  because  the  act  does  not 
apply  to  employers  of  less  than  five  persons,  and,  if  it 
were  found  thus  to  apply,  that  the  employee  was  not 
entitled  to  compensation  because  the  employer  had  failed 
to  comply  with  section  30  of  part  B,  requiring  employers  to 
give  proof  of  financial  ability  or  to  insure  their  risks.  The 
court  decided  against  both  these  contentions,  and  dismissed 
the  appeal.  Judge  Thayer,  who  delivered  the  opinion,  dis- 
cussed at  length  the  reasons  for  and  against  the  inclusion 
of  employers  of  less  than  five  persons  under  part  B,  in 
case  they  do  not  actively  elect  not  to  be  within  such  pro- 
visions, and  held  that  while  the  legislature  intended  to  offer 
less  inducements  to  the  small  employers  and  their  em- 
ployees, together  with  those  concerned  in  agricultural,  do- 
mestic and  casual  employments,  it  was  not  the  expressed 
intention  to  exclude  them.  As  to  the  other  question  he 
said  in  part: 

"But  the  chief  inducement  to  the  employee  to  accept  part 
B  unquestionably  is  the  fact  that  he  thereby  secures  com- 
pensation for  injuries  for  which  the  common  law  gives  him 
no  remedy.  It  is  too  unreasonable  to  believe  that  the 
legislature  intended  that  the  employer,  after  having  ac- 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  7 

cepted  part  B,  should  be  able  to  deprive  the  employee  of 
these  benefits  without  notice  by  simply  neglecting  to  comply 
with  the  provisions  of  the  act  which  he  had  accepted.  It  is 
consistent  with  the  language  of  section  42  to  hold  that 
failure  by  the  employer  to  comply  with  section  30  deprives 
the  employee  of  his  benefits  under  Part  B,  but  does  not  de- 
prive the  employee  of  his  benefits  under  it,  and  that  the  lat- 
ter in  such  case  may  claim  compensation  under  the  act  or,  in 
a  case  when  the  common  law  gives  a  remedy,  may  have  his 
action  at  common  law  as  modified  by  part  A.  This  we 
think  is  the  proper  construction  to  be  given  to  this  section. 
It  follows  that  compensation  was  properly  awarded  to  the 
plaintiff."  Bayon  v.  Beckley,  89  Conn.  154,  93  Atl.  139,  8 
N.  C.  C.  A.  588. 

§  7.  Administrator  As  Employer. 

"A  workman  who  has  been  receiving  compensation, 
may,  upon  the  death  of  the  employer,  and  neglect  or  refusal 
of  the  next  of  kin  to  take  out  letters,  secure  the  appoint- 
ment of  an  administrator  so  as  to  be  able  to  enforce  his 
right  to  compensation,  since  the  workman  can  not  be  de- 
prived of  compensation  merely  because  there  is  no  one 
standing  in  the  position  of  'employer.' '  L.  R.  A.  1916A 
(note),  113.  Re  Byrne  (1910  Prob.),  44  Ir.  Law  Times  98, 
3  B.  W.  C.  C.  591.  Who  are  employers,  see  L.  R.  A.  1916A, 
note,  p.  13;  also  L.  R.  A.  1916A,  note,  p.  245. 

§  7a.  Charitable  Institutions  As  Employers. 

In  MacGillivray  v.  The  Northern  Counties  Institute  For 
the  Blind  (Eng.),  48  Sc.  L.  R.  811,  4  B.  W.  C.  C.  429,  11  N. 
C.  C.  A.  77,  a  blind  pauper  was  working  in  the  industrial 
department  of  an  institution  for  the  blind.  The  institution 
was  dependent  upon  chariable  aid.  The  man  caught  his 
fingers  in  a  machine.  The  court  decided  the  man  was  a 
workman  and  entitled  to  compensation.  The  Lord  President 
said:  "He  was  employed  under  a  contract  of  service.  He 
was  not  bound  to  go  to  the  institute  and  the  institute  was 
not  bound  to  receive  him.  He  stipulated  that  he  would 


8  MANUAL  OF  COMPENSATION  LAW 

give  his  services  for  what  they  were  worth  to  the  institute, 
and  they  in  return,  stipulated  that  they  would  give  him 
board,  lodging  and  clothing  and  5s  a  month  in  money." 

§  8.  Who  Are  Employees. 

To  determine  whether  an  employee  is  subject  to  the 
act,  it  is  necessary  to  learn  whether  the  particular  employ- 
ment in  which  he  is  engaged  is  one  subject  to  the  law. 
Usually  no  affirmative  act  upon  the  part  of  the  employee 
is  necessary  in  order  to  bring  him  within  the  law.  But  in 
Kentucky  he  must  agree  to  accept  the  act  in  writing  with 
his  employer. 

The  rules  for  determining  the  existence  of  the  relation 
of  employer  and  .employee  are  the  same  as  those  at  com- 
mon law  for  the  relation  of  master  and  servant,  (See  §  1.) 
Therefore,  in  order  to  recover  compensation  a  contract  of 
employment  between  the  injured  person  and  the  employer 
from  whom  he  is  seeking  compensation  must  be  shown. 

§  9.  Pieceworker  As  Employee. 

One  Bashko  had  been  awarded  compensation  by  the 
district  court  of  St.  Louis  County  for  an  injury  which 
resulted  in  the  loss  of  sight  of  one  eye.  He  was  at  work 
for  the  company  named  in  getting  out  ties,  poles  and  posts 
from  the  company's  timberlands,  being  paid  by  the  piece 
according  to  the  size,  character  and  grade  of  the  different 
articles.  He  could  largely  proceed  in  his  own  way  so  far 
as  time  and  method  of  working  was  concerned,  and  the 
company  contended  that  he  was  an  independent  contractor 
and  not  an  employee  entitled  to  compensation.  It  invoked 
the  test  laid  down  by  the  courts  as  to  the  relation  of  em- 
ployer and  employee  with  reference  to  responsibility  for 
negligence  causing  injury  to  third  persons,  that  is,  whether 
or  not  the  alleged  employer  had  power  to  control  the  acts 
of  the  other  in  respect  to  the  transaction  out  of  which  the 
injury  arises.  The  court,  speaking  by  Judge  Taylor,  held 
that  the  evidence  in  this  case  that  Bashko  was  such  an 
employee  was  sufficient  to  have  required  its  submission 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  9 

to  the  jury,  if  this  had  been  an  action  at  law  to  which  the 
rule  mentioned  applied,  saying  in  part : 

"In  the  present  case  Bashko  did  not  contract  to  perform 
a  specific  and  definite  undertaking,  nor  to  accomplish  a 
specific  and  agreed  upon  result.  He  did  not  agree  to  cut  any 
specific  quantity  of  timber,  nor  to  cut  the  timber  from 
any  specific  quantity  of  land.  The  company  owned  the 
timber  and  wanted  it  made  into  ties,  poles  and  posts.  It 
had  established  a  schedule  of  prices  which  it  paid  for 
piecework.  Bashko  had  worked  at  piecework  for  some 
years  and  could  earn  more  than  the  ordinary  wages  at 
such  work.  He  applied  for  a  job  getting  out  timber  by  the 
piece  and  the  company  set  him  to  work.  The  company 
had  a  large  number  of  men  doing  the  same  kind  of  work 
upon  the  same  terms.  It  is  not  likely  that  the  owners  of 
valuable  timber  would  permit  ordinary  workmen  to  cut  and 
manufacture  it  for  them  wholly  free  from  supervision  or 
control.  The  evidence  tends  to  show  that  the  company 
did  not  surrender,  but  reserved,  the  right  to  supervise  and 
control  the  work  of  Bashko,  at  least  to  the  extent  necessary 
to  prevent  waste  and  loss.  They  required  him  to  cut  the 
timber  clean  as  he  went,  and  to  manufacture  it  according 
to  specifications  furnished  by  them,  and  also  to  pile  the 
brush.  They  inspected  his  work  from  time  to  time  and 
occasionally  directed  him  to  remedy  defects  therein.  They 
had  the  right  to  discharge  him  at  any  time,  and  this  right 
afforded  adequate  means  for  controlling  his  work.  The 
evidence  was  ample  to  sustain  the  finding  of  the  trial  court 
under  the  rule  invoked." 

The  court  therefore  held  that  the  injured  man  was  an 
employee  under  the  workmen's  compensation  act,  and 
affirmed  the  judgment  of  the  court  below.  State  ex  rel. 
Virginia  and  Rainy  Lake  Co.  v.  Dist.  Ct.  of  St.  Louis 
County  et  al,  128  Minn.  43,  150  N.  W.  211,  7  N.  C.  C.  A. 
1076. 

§  10.  Son  As  Employee  of  Father. 

Evidence  that  a  father  who  owned  a  shingle  mill  told  his 


10 

thirteen-year-old  son  that  he  could  do  certain  work  in  con- 
nection with  the  mill,  nothing  being  said  about  the  wages  or 
compensation  of  the  son,  is  not  sufficient  to  create  the  rela- 
tion of  employer  and  employee,  so  as  to  constitute  the  son 
an  employee  within  the  meaning  of  the  Washington  com- 
pensation act.  Hillestad,  et  ux.,  v.  Industrial  Insurance 
Commission  of  Washington,  141  Pac.  913,  6  N.  C.  C.  A.  763. 

§  11.  Employment  Obtained  By  Misrepresentation. 

It  has  been  held  that  where  an  employee  in  securing 
employment  misrepresents  his  name  and  age,  that  does 
not  forfeit  his  right  to  claim  compensation  from  the  em- 
ployer, especially  when  the  misrepresentation  has  no  direct 
connection  with  the  contract  of  employment.  Havey  v.  Erie 
R.  R.  Co.,  87  N.  J.  L.  444,  95  Atl.  124. 

Likewise  where  an  employee  made  a  false  affidavit  as 
to  previous  similar  employment  and  as  to  marriage  and 
where  neither  of  these  representations  were  related  to  or 
contributed  to  his  death,  he  was  held  to  be  within  the  New 
York  act.  The  court  said :  "While  the  relation  of  employer 
and  employee  as  defined  by  the  statutes  must  have  existed 
at  the  time  the  deceased  sustained  the  injury,  it  matters 
not  whether  the  employment  was  under  a  contract  con- 
cededly  valid  as  to  both  parties,  or  under  a  contract  void- 
able at  the  election  of  the  employer,  or  whether  the  liability 
of  the  employer  was  for  wages  fixed  or  determinable  under 
quantum  meruit.  The  vital  question  is  whether  the  rela- 
tion of  employer  and  employee  existed  between  the  deceased 
and  the  railway  company ;  and,  the  facts  being  conceded,  the 
question  is  one  of  law."  Kenny  v.  Union  Ry.  Co.  of  New 
York  City,  166  App.  Div.  497,  152  N.  Y.  Supp,  117,  8  N.  C. 
C.  A.  986. 

§  12.  Extrahazardous  Employments. 

Many  of  the  acts  differentiate  between  hazardous  and 
non-hazardous  employments,  making  the  operation  of  the 
act  as  to  them,  voluntary  or  compulsory  as  the  case  may 
be.  In  the  States  set  out  below  the  statute  enumerates 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  11 

certain  so  called  hazardous  or  especially  dangerous  employ- 
ments and  declares  that  the  compensation  principle  shall 
apply  to  them  as  distinguished  from  the  unnamed  or  specifi- 
cally exempted  employments,  but,  in  most  cases,  those  not 
engaged  in  the  named  employments  may  voluntarily  elect 
to  operate  under  the  acts.  These  States  are  Arizona, 
Kansas,  Louisiana,  Maryland,  Montana,  New  Hampshire, 
New  York,  Oklahoma,  Oregon,  Washington  and  Wyoming, 
The  statute  of  the  State  in  question  should  be  carefully 
examined  to  determine  whether  any  specific  employment  is 
covered  by  it. 

§  13.  Employees  In  Hazardous  Employment  Injured  in  Non- 
Hazardous  Work. 

The  New  York  act  enumerates  certain  employments 
which  are  covered  by  it.  It  was  held  that  an  employee 
engaged  in  one  of  the  employments  named  in  the  act  could 
recover,  although  actually  injured  while  doing  work  not 
ordinarily  included  in  such  an  employment,  but  an  employee 
not  engaged  in  one  of  the  named  employments  can  only 
recover  when  his  injury  occurred  while  actually  engaged  in 
work  covered  by  the  act.  Gleisner  v.  Gross  &  Herbener  155 
N.  Y.  S.  946,  170  App.  Div.  37. 

In  Larsen  v.  Paine  Drug  Co.  et  al.,  155  N.  Y.  S.  759,  169 
App.  Div.  838,  affirmed  in  218  N.  Y.  252,  112  N.  E.  725, 
the  facts  were  as  follows :  Kris  Larsen  was  killed  while  in 
the  employ  of  the  company  named,  and  his  widow,  Ingeborg 
Larsen  proceeded  for  compensation.  An  award  was  made, 
and  the  employer  and  insurer  appealed. 

The  commission  found  that  Larsen  was  employed  as  a 
porter,  elevator  man  and  general  utility  man  by  the  com- 
pany, which  was  in  the  business  of  manufacturing  and 
selling  drugs,  chemicals,  medicines  and  pharmaceutical 
preparations  at  both  retail  and  wholesale.  The  court  held 
that  it  might  reasonably  be  inferred  that  a  wholesale  drug- 
gist manufactured  drugs.  The  commission  further  found 
that  the  employee  at  the  time  of  the  accident  was  engaged 
in  building  a  shelf  near  an  elevator  well,  and  while  reaching 


12  MANUAL  OF  COMPENSATION  LAW 

into  the  well  to  obtain  a  board  which  he  had  placed  there, 
fell  down  the  shaft  and  was  instantly  killed.  The  court  up- 
held the  award  of  compensation,  Judge  Howard,  who  deliv- 
ered the  opinion,  saying: 

"A  general  utility  man,  engaged  in  an  establishment 
where  drugs  and  chemicals  are  manufactured,  must  be 
presumed  to  participate  more  or  less  in  the  work  of  the 
establishment.  The  deceased  was  engaged  at  the  instant 
of  the  accident  in  building  a  shelf,  but  in  order  to  do  this 
it  may  have  been  necessary  to  handle  the  drugs  and  chemi- 
cals in  the  building;  that  is,  move  them  so  as  to  have  room 
to  build  the  shelf,  and  after  it  was  built  place  them  upon 
the  shelf.  In  fact,  the  evidence  before  the  commission 
shows  that  the  deceased  was  required  to  rearrange  cases 
and  do  work  of  that  character.  In  McQueeney  v.  Sutphen 
&  Hyer  (153  N.  Y.  Supp.  554),  this  court  said:  'If  the  em- 
ployee is  engaged  in  an  employment  declared  hazardous  by 
this  law,  but  at  times  may  work  in  a  non-hazardous  em- 
ployment, it  is  not  unreasonable  that  the  injury  should  be 
considered  within  the  act,  if  the  employer  fails  to  show  all 
the  facts.'  " 

§  14.  One  Department  of  Business  Hazardous. 

Under  the  Washington  act  a  department  store  kept  a 
repair  shop  where  their  own  vehicles  were  kept  in  order. 
A  carpenter,  while  turning  on  a  switch  to  start  an  emery 
wheel,  so  that  he  could  sharpen  a  tool,  received  a  shock 
which  caused  his  death.  It  was  claimed  that  the  general 
merchandising  business  was  not  hazardous  within  the  mean- 
ing of  the  statute.  The  court  said: 

"If  we  could  so  construe  that  the  extra  hazardous  char- 
acter of  the  employer's  business  was  to  be  determined  by 
the  business  he  was  principally  engaged  in,  we  might  accept 
the  finding  of  the  commission,  but  the  act,  as  we  have  seen, 
recognizes  the  fact  that  the  same  employer  may  conduct 
different  departments  of  business,  some  of  which  fall  within 
the  act,  some  of  which  do  not.  And  in  this  connection  it 
matters  not  which  is  the  principal  business  and  which  is 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  13 

the  incidental  business.  If  the  employer  conducts  any  de- 
partment of  his  business,  whether  large  or  small,  as  an 
extra  hazardous  business  within  the  meaning  and  defined 
terms  of  this  act,  his  workmen  would  come  within  the 
class  designated  by  the  act,  and  be  entitlted  to  the  protec- 
tion of  the  act."  Wendt  v.  Industrial  Ins.  Comm.  80  Wash. 
Ill,  141  Pac.  311,  5  N.  C.  C.  A.  790.  See  also  State  v. 
Business  Property  Co.,  87  Wash.  627,  152  Pac.  334. 

§  15.  General  Illustrations  of  Hazardous  Employments. 

Harvesting  ice  is  not  a  hazardous  employment  under 
the  New  York  Act.  Aylesworth  v.  Phoenix  Cheese  Co.  155 
N.  Y.  S.  916, 170  App.  Div.  34. 

A  janitor  of  a  building  who  slipped  and  fell  "while 
going  upon  the  roof  to  perform  some  work  on  a  flagpole" 
is  not  within  the  New  York  Act.  Gleisner  v.  Gross  &  Her- 
bener  et  al.,  155  N.  Y.  Supp.  946. 

An  employe  of  a  retail  butcher  while  operating  an 
electric  meat  chopper  received  injuries  causing  his  death. 
It  was  held  that  he  was  engaged  in  a  hazardous  employ- 
ment within  the  New  York  Act.  Kohler  v.  Frohmann  et  al. 
167  App.  Div.  533,  153  N.  Y.  Supp.  559.  But  it  was  also 
held  under  the  New  York  Act  that  a  hotel  butcher  distrib- 
uting meats  to  cooks  in  the  hotel  as  ordered,  was  not 
engaged  in  a  hazardous  employment.  Dela  Gardelle  v. 
Hampton  Co.,  153  N.  Y.  S.  162,  167  App.  Div.  617. 

An  employee  who  was  injured  when  a  horse  he  was 
removing  from  its  stall  fell  on  him,  was  engaged  in  a  haz- 
ardous occupation,  within  the  meaning  of  the  New  York 
Act.  Costello  v.  Taylor,  111  N.  E.  755,  217  N.  Y.  179.  See 
also  Smith  v.  Price  168  App.  Div.  421, 153  N.  Y.  S.  221. 

An  employee  of  a  wholesale  grocery  company  working 
in  the  storehouse  was  held  not  engaged  in  the  hazardous 
occupation  of  warehousing.  Mihm  v.  Hussey,  155  N.  Y.  S. 
860,  169  App.  Div.  742. 

William  H.  Wilson  was  killed  when  he  accidentally  fell 
down  an  elevator  shaft  in  the  establishment  of  fiis  employer, 
the  company  named.  He  was  a  porter  and  shipping  clerk, 


14  MANUAL  OF  COMPENSATION  LAW 

and  incidentally  operated  the  elevator  when  he  had  occasion 
to  use  it,  there  being  no  regular  operator.  The  court  held 
that  the  employee  was  included  within  the  classification  of 
group  41,  which  includes  operation  of  vehicles  otherwise 
than  on  tracks,  deciding  that  the  elevator  car  was  such  a 
vehicle.  Wilson  v.  Dorf linger,  155  N.  Y.  S.  857 ;  followed  by 
Chapell  v.  412  Broadway  Co.,  155  N.  Y.  S.  858 ;  Cremin  v. 
Mordecai,  155  N.  Y.  S.  859 ;  Mclntyre  v.  Hilliard  Hotel  Co., 
155  N.  Y.  S.  859;  Sheridan  v.  P.  J.  Grol  Const.  Co.,  155  N. 
Y.  S.  859. 

A  macaroni  manufacturer,  engaging  a  carpenter  by  the 
hour,  is  not  engaged  in  a  hazardous  business  within  the 
New  York  Act.  Bargey  v.  Massaro  Macaroni  Co.,  155  N. 
Y.  S.  1076. 

A  workman,  constructing  a  manhole  near  a  street  car 
track,  is  not  engaged  in  an  extra  Hazardous  employment 
within  the  Washington  Act.  Puget  Sound  Traction,  Light 
&  Power  Co.  v.  Schleif,  220  Fed.  48,  135  C.  C.  A.  616. 

A  workman  operating  an  ordinary  elevator  in  a  business 
house  is  not  engaged  in  an  extra  hazardous  employment 
under  the  Washington  Act.  Guerrieri  v.  Ind.  Ins.  Comm. 
146  Pac.  608. 

See  11  N.  C.  C.  A.  320-330,  for  comprehensive  note  on 
classified  employments 

§  16.  State,     County,     Municipality     and     Governmental 
Agencies  Under  the  Acts. 

A  number  of  the  workmen's  compensation  acts  have 
been  made  to  apply  to  State,  county  and  municipality  and 
their  political  subdivisions,  notably  California,  Connecticut, 
Illinois,  Iowa.,  Massachusetts,  Michigan,  Minnesota, 
Nebraska,  Nevada,  New  Jersey,  New  York,  Ohio  and  Wis- 
consin. The  Kentucky  act  applies  to  municipal  corporations 
but  not  to  the  State  or  county  and  the  Oregon  act  excludes 
municipal  corporations. 

A  State,  being  a  sovereign,  was  not  liable  at  law  for 
the  torts  of  its  officers  or  agents  unless  it  expressly  con- 
sented to  be  liable  by  legislative  enactment.  See  36  Cyc. 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  15 

881  and  911  and  cases  cited.  A  county  was  generally  not 
subject  to  liability  for  any  tort  unless  a  statute,  expressly 
or  by  necessary  implication  imposed  such  liability.  See  11 
Cyc.  497  and  cases  cited.  The  same  rule  has  been  applied 
to  a  municipality  acting  in  its  capacity  as  a  governmental 
agency.  See  28  Cyc.  1257  and  cases  cited.  Since  work- 
men's compensation  acts  merely  displace  and  enlarge  the 
law  of  torts  under  certain  conditions  as  between  master  and 
servant,  the  statute  should  be  consulted  to  see  whether  it 
applies  to  the  State,  county  or  municipality.  If  the  act  is 
elective  the  law  must  also  provide  the  manner  and  means 
of  election. 

§  17.  The  State  and  Its  Political  Subdivisions  As  Employers. 

The  acts  usually  define  the  term  "employer"  and  say, 
as  in  New  York  for  example,  that'it  includes  "the  State  and 
a  municipal  corporation  or  other  subdivision  thereof." 
Laws  1914,  N.  Y.,  c.  41,  art.  1,  §  3. 

In  Miller  v.  Pillsbury  et  al.,  164  Cal.  199,  128  Pac.  327, 
5  N.  C.  C.  A.  899,  the  Supreme  Court  of  California  has 
considered  the  question  of  the  State  being  an  employer. 

The  compensation  law  of  California,  ch.  399,  Acts  of 
1911,  provided  that  the  State  and  its  subdivisions,  and 
every  person,  firm  or  private  corporation  employing  labor 
who  elected  to  become  subject  to  the  provisions  of  the  act 
might  make  premium  payments  to  a  State  fund  to  which 
injured  workmen  should  look  for  compensation  for  injuries. 
No  machinery  was  provided  by  which  the  State  might  avail 
itself  of  its  provisions,  and  no  action  was  taken  by  it  in 
this  behalf.  Fred  Miller  attempted  to  secure  a  writ  of  man- 
damus compelling  the  State  Industrial  Accident  Board  to 
hear  his  application  for  compensation  for  injuries  received 
while  employed  by  the  State.  Miller  contended  that  the 
State  and  its  municipalities  were  employers  under  the  law, 
and  that  while  private  employees  had  the  option  of  reject- 
ing the  compensation  system  if  their  employers  had  elected 
it,  employees  of  the  State  had  no  such  option;  he  main- 
tained, therefore,  that  it  was  obligatory  upon  the  State  to 


16  MANUAL  OF  COMPENSATION  LAW 

provide  compensation  under  this  act.  This  the  supreme 
court  denied,  observing  that  no  provision  had  been  made 
for  the  State  to  make  its  election,  if  the  law  was  elective 
as  to  it,  nor  was  there  any  officer  named  to  receive  service 
of  notice  of  injuries  and  claims  as  contemplated  in  the  act, 
nor  was  any  machinery  supplied  for  the  performance  by  or 
in  behalf  of  the  State  of  the  duties  which  would  necessarily 
result  from  a  carrying  out  of  tTie  act.  The  statute  was 
therefore  considered  as  simply  setting  up  a  law  under  which 
the  State  might,  at  some  time,  elect  to  place  itself  when 
suitable  provisions  therefor  should  be  provided  by  legisla- 
tion. The  writ  was  therefore  discharged. 

For  a  discussion  of  the  State  and  other  governmental 
agencies  as  employers  within  the  meaning  of  workmen's 
compensation  acts  see  5  N.  C.  C.  A.  (note)  897-913 ;  8  N.  C. 
C.  A.  960-968. 

§  18.  Administrative  Boards  of  State  As  Employers. 

The  State  Highway  Commission  has  been  held  liable 
under  the  California  Act.  Brett  v.  State  Highway  Com- 
mission, Cal.  Ind.  Ace.  Bd.,  1  Nat.  Comp.  Journal  (July, 
1914),  5  N.  C.  C.  A.  902.  It  was  held  otherwise  in  New 
York.  Allen  v.  State,  160  N.  Y.  S.  85.  The  State  Fire 
Warden's  Dept.  has  been  held  liable  under  the  Michigan 
Act.  Kenelly  v.  Steam's  Salt  &  Lumber  Co.,  Mich.  Ind. 
Ace.  Bd.  1  Nat.  Comp.  Journal  (July,  1914). 

§  19.  State  Board  of  Agriculture  As  Employer. 

In  Agler  v.  Michigan  Agricultural  College,  181  Mich. 
559,  148  N.  W.  341,  5  N.  C.  C.  A.  897,  Agler  was  an  em- 
ployee of  the  Michigan  Agricultural  College,  which  is  under 
the  control  of  the  State  Board  of  Agriculture.  By  constitu- 
tional provision,  as  construed  by  the  courts,  neither  the 
legislature  of  Michigan  or  any  of  its  officers  or  boards  may 
interfere  with  the  control  of  the  agricultural  college,  vested 
in  the  State  Board  of  Agriculture.  Agler  was  injured  and 
made  claim  for  compensation  as  an  employee  of  the  State 
under  Sec.  5,  Part  1  of  the  Michigan  Act.  The  court  held 
that  as  an  employee  of  the  State  Board  of  Agriculture, 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  17 

working  at  the  Michigan  Agricultural  College,  he  was  not  an 
employee  of  the  State,  and  since  the  board  had  not  volun- 
tarily elected  to  come  under  the  act,  he  could  not  recover. 

§  20.  County  As  Employer. 

A  county  was  held  liable  for  injury  to  an  employee 
working  in  a  gravel  pit.  Popke  v.  Wanpaca  County,  Wis- 
consin Ind.  Comm.  Bui.  (1912),  98,  8  N.  C.  C.  A.  (note)  960. 

§  21.  A  Sheriff  Not  An  Employee  of  State. 

A  Sheriff  was  held  not  to  be  an  employee  of  the  State 
within  the  meaning  of  the  Connecticut  Act.  Sibley  v.  State, 
89  Conn.  682,  96  Atl.  161. 

§  22.  Board  of  Park  Commissioners  As  Employer. 

A  park  caretaker,  employed  by  the  Park  Commission- 
ers, who  were  a  board  acting  under  the  direction  and  con- 
trol of  the  City  Council  of  Superior,  received  injuries  in 
the  course  of  his  employment,  from  which  he  died.  The 
Wisconsin  Act  brings  "the  State  and  each  county,  city, 
town,  village  and  school  district"  within  the  definition  of  the 
term  "employer."  The  deceased  was  held  to  be  an  employee 
of  the  city  and  entitled  to  compensation.  City  of  Superior 
v.  Industrial  Commission  et  al.,  160  Wis.  541,  8  N.  C.  C.  A. 
960. 

§  23.  Town  or  Contractor  As  Employer. 

A  contractor  had  an  agreement  with  the  town  of  Super- 
ior to  build  a  bridge.  He  was  to  select  his  own  men  and 
furnish  the  machinery  and  teams  to  do  the  work  for  which 
he  was  to  be  paid,  and  he  was  to  be  paid  a  given  rate  per  day 
per  man  for  the  balance  of  the  crew.  An  employee  was 
injured  and  the  question  was  whether  he  was  an  employee 
of  the  contractor  or  the  town.  The  board  said:  "We 
conclude  that  Zachau  was  the  agent  of  the  town  for  the 
selection  of  the  crew  and  that  the  crew  selected  were  the 
employees  of  the  town."  Peabody  v.  Town  of  Superior, 
Wis.  Ind.  Comm.  Bui.  (1912),  99,  8  N.  C.  C.  A.  961. 


18  MANUAL  OF  COMPENSATION  LAW 

§  24.  Pupil  In  Manual  Training  High  School  As  Employee 
of  City. 

A  high  school  boy  working  in  a  manual  training  depart- 
ment of  a  school  on  Saturday  for  pay  at  the  direction  of  the 
principal,  with  the  knowledge  and  acquiescence  of  the 
school  board,  was  held  to  be  an  employee  of  the  city  of 
Appleton  under  the  Wisconsin  Act.  Schmitz  v.  City  of 
Appleton,  Wis.  Ind.  Comm.  Bui.  (1913)  31,  8  N.  C.  C.  A.  962. 

§  25.  Board  of  Public  Works  As  Employer. 

A  street  sweeper  who  was  run  down  and  injured  by  a 
vehicle  on  the  public  streets  where  he  was  directed  to 
work  was  allowed  to  recover  from  the  city.  It  was  argued 
that  he  was  an  employee  of  the  Board  of  Public  Works  and 
not  the  city.  Purdy  v.  Sault  Ste  Marie,  Mich.  Ind.  Ace.  Bd. 
5  N.  C.  C.  A.  905. 

§  26.  Village  As  Employer  of  Citizen  Assisting  Marshal. 

A  man  was  working  as  a  plumber  and  was  asked  by  a 
village  marshal  to  assist  some  officers  in  charge  of  an 
offender.  While  assisting  in  the  arrest  he  was  killed.  It 
was  held  that  by  the  invitation  of  the  marshal  he  became 
an  employee  of  the  village  and  was  therefore  entitled  to 
compensation.  Village  of  West  Salem  v.  Ind.  Com.  162  Wis. 
57,  155  N.  W.  929. 

For  note  on  Municipal  Corporations  as  employers,  see 
5  N.  C.  C.  A.  904-912,  8  N.  C.  C.  A.  960-968. 

§  27.  Policemen  and  Firemen  As  Employees. 

The  provisions  of  the  act  in  question,  having  to  do  with 
employees  of  the  municipality,  State  or  governmental 
agencies  must  be  consulted  before  determining  this  ques- 
tion. 

The  reasoning  which  has  determined  whether  policemen 
are  within  the  act  or  not  is:  Are  they  public  officers  or 
employees  of  the  city.  If  public  officers,  the  act  does  not- 
apply  to  them.  In  Blynn  v.  City  of  Pontiac,  185  Mich.  35, 151 
N.  W.  681,  8  N.  C.  C.  A.  793,  the  court  said:  "The  decision 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  19 

of  the  Industrial  Board  can  be  affirmed  only  if  it  is  found 
that  a  policeman  of  the  city  of  Pontiac,  under  the  facts 
stipulated,  is  an  employee  and  not  a  public  officer.  Police- 
men generally  are  charged  with  the  especial  duty  of  pro- 
tecting the  lives  of  citizens  within  certain  territorial  limits, 
and  of  preserving  the  public  peace.  The  preservation  of  the 
public  peace  being  a  matter  of  public  concern,  it  has  there- 
fore been  said  that  policemen  may  be  considered  as  public 
officers.  As  a  rule,  they  are  appointed  under  authority 
given  by  the  State,  and  therefore  have  generally  not  been 
regarded  as  servants  or  agents  or  as  otherwise  bearing  a 
contractual  relation  to  the  municipality.  Schmitt  v.  Dool- 
ing,  145  Ky.  240,  140  S.  W.  197,  36  L.  R.  A.  (N.  S.)  881, 
Ann.  Gas.  1913B,  1078."  The  court  held  in  this  case  that 
as  public  officers  policemen  were  not  "employees"  within 
the  scope  of  the  act.  The  court  cited  Schmitt  v.  Dooling,  145 
Ky.  240,  140  S.  W.  197.  In  this  case  the  Kentucky  Court 
of  Appeals  in  unmistakable  terms  held  that  both  policemen 
and  firemen  were  "public  officers." 

In  Minnesota  both  policemen  and  firemen  were  held  to 
be  within  the  coverage  of  the  act.  The  case  of  Blynn  v. 
City  of  Pontiac  (supra)  was  discussed  by  the  court,  but 
was  held  to  have  no  bearing  in  Minnesota  on  account  of  a 
provision  of  the  Minnesota  Act  which  seems  to  be  peculiar 
to  that  State.  In  State  ex  rel.  City  of  Duluth  v.  Dist.  Court 
of  St.  Louis  Co.  et  al.,  —  Minn.  — ,  158  N.  W.  790,  wherein  a 
policeman  was  held  within  the  act,  the  court  said:  "The 
question  before  us  is  different.  It  is  not  whether  a  police- 
man is  an  officer  or  an  official,  but  whether  he  is  'an 
official  .  .  elected  or  appointed  for  a  regular  term  of 
office.'  Clearly  he  is  not.  A  'regular  term  of  office'  sig- 
nifies a  definite  period  of  time.  .  .  .  Under  the  Duluth 
charter  policemen  receive  their  office  by  appointment  under 
civil  service  rules.  They  hold  office  during  good  behavior. 
There  is  no  term  at  all.  Manifestly  this  is  not  an  appoint- 
ment for  'a  regular  term  of  office.' " 

In  State  ex.  Rel.  City  of  Duluth  v.  Dist.  Court  of  St. 


20  MANUAL  OF  COMPENSATION  LAW 

Louis  Co.  et  al. — Minn. — ,  158  N.  W.  791,  a  fireman  was 
held  to  be  within  the  Minnesota  Act  for  the  same  reasons 
given  in  the  preceding  case  concerning  a  policeman. 

The  English  cases  concerning  policemen  are  not  in  point 
because  the  English  Act  in  so  many  words  excludes  police- 
men. Section  13,  Acts  1906.  The  Wisconsin  Act  includes 
policemen,  Acts  1913,  §§  2394,  2397. 

§  28.  Who  Are  Independent  Contractors. 

Independent  contractors  are  not  covered  by  Workmen's 
Compensation  Acts  generally  and  they  can  not  claim  its 
benefits  against  their  principals  (L.  R.  A.  1916A  (note) 
247 ;  7  N.  C.  C.  A.,  1076) .  The  question  to  be  determined  is 
whether  they  are  employees  or  independent  contractors. 
That  question  is  usually  settled  by  the  decisions  on  this  point 
at  common  law.  In  Mason  &  Hodge  Company  v.  Highland, 
116  S.  W.  320,  the  Kentucky  Court  of  Appeals  has  presented 
a  satisfactory  test  when  it  said :  "Who  has  the  general  con- 
trol of  the  work?  Who  has  the  right  to  direct  what  shall 
be  done?  Who  shall  do  it  and  how  it  shall  be 
done?  If  the  answer  to  these  queries  shows  that  this 
right  remains  in  the  employer,  the  relation  of  independent 
contractor  does  not  exist  between  the  contractor  and  the 
employer.  On  the  other  hand,  if  the  employer  has  not  this 
privilege  it  does  exist." 

The  following  definition  of  independent  contractor  is 
given  in  26  Cyc.  970:  "One  who  contracts  to  do  a  specific 
piece  of  work,  furnishing  his  own  assistants,  and  executing 
the  work  either  entirely  with  his  own  ideas  or  in  accordance 
with  a  plan  previously  given  to  him  by  the  person  for  whom 
the  work  is  done,  without  being  subject  to  the  orders  of  the 
latter  in  respect  to  the  details  of  the  work." 

§  29.  An  Independent  Contractor  As  An  Employee. 

In  Powley  v.  Vivian  &  Co.,  169  App.  Div.  170,  154  N.  Y. 
Supp.  426,  10  N.  C.  C.  A.  835,  Powley  agreed  to  do  certain 
dredge  work  for  Vivian  &  Co.  He  was  to  furnish  his  own 
dredge  and  operate  it  and  the  company  was  to  furnish 
supplies.  While  going  for  supplies  in  a  launch,  there  being 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  21 

no  one  else  to  go,  he  was  injured.  The  court  held  that  as 
an  independent  contractor  Powley  was  not  covered  by  the 
act,  but  that  in  going  for  supplies  for  the  company  he  was 
an  employee  and  entitled  to  compensation. 

In  Rheinwald  v.  Builders'  Brick  &  Supply  Co.,  168  App. 
Div.  425,  153  N.  Y.  Supp.  598,  Rheinwald  was  painting  a 
sign  on  the  walls  of  a  building  owned  by  the  defendants. 
He  was  doing  the  work  alone  under  written  contract  as 
to  quantity  of  materials  and  workmanship  and  was  to  be 
paid  in  a  lump  sum  for  the  job.  He  was  killed  and  his  wife 
demanded  compensation.  The  Builders'  Brick  &  Supply  Co. 
maintained  that  he  was  an  independent  contractor  and  not 
an  employee.  The  commission  upheld  this  view  by  a  vote 
of  three  to  two.  But  the  court  in  the  above  decision  re- 
versed their  ruling,  but  by  a  divided  court.  This  decision 
seems  rather  out  of  line  with  those  defining  the  term  inde- 
pendent contractor.  Judge  Woodward,  delivering  the  ma- 
jority opinion,  said  in  part: 

"Was  Rheinwald  an  'employee,'  in  fairness  and  in  fact, 
within  the  meaning  of  the  workmen's  compensation  law? 
Was  he  of  the  grade  and  status  of  worker,  rather  than  of 
the  grade  and  status  of  independent  enterpriser?  I  am  of 
opinion  that  he  was,  and  that  such  a  holding  is  essential 
to  effectuate  the  purpose  of  the  act,  in  transmitting  the 
burden  of  this  bereavement  from  the  scanty  purse  of  this 
workingman's  widow  and  children  to  all  the  patrons  of  the 
product  or  service  furnished  by  his  employer.  The  fact 
that  he  was  to  be  paid  a  lump  sum  or  'by  the  job'  -can 
not  be  recognized  as  taking  him  out  of  the  class  of  'em- 
ployee.' The  fact  that  his  contract  to  do  the  work  was  in 
writing  is  not  decisive  on  that  issue,  or  the  fact  that  by  it 
he  made  certain  undertakings  of  satisfaction  of  the  em- 
ployer or  replacement  if  the  finished  work  did  not  endure 
an  expected  length  of  time.  The  fact  that  his  employment 
by  the  respondent  was  casual  or  intermittent  can  not  de- 
prive him  of  the  status  of  employee,  in  the  absence  of  ex- 
plicit legislative  pronouncement  to  that  effect.  The  fact 


22  MANUAL  OF  COMPENSATION  LAW 

that  he  furnished  tools  or  materials,  or  undertook  to  do  a 
specified  'job'  or  produce  a  given  result,  does  not  prevent 
his  being  in  fact  a  workman,  an  'employee,'  within  the  pur- 
view of  this  statute.  Common  sense  and  regard  for  the  ac- 
tualities should  be  potent  on  this  issue,  rather  than  techni- 
cal distinctions  and  elaborate  refinements.  Rheinwald  really 
was  a  worker;  the  sum  he  received  for  his  painting  was  in 
an  economic  sense  wages,  and  not  profits;  he  had  no  help- 
ers, on  whose  work  he  made  a  profit;  he  was  not  an  em- 
ployer, with  employees  whom  it  was  his  duty  to  insure  un- 
der the  act;  he  personally  performed  all  the  work;  it  was 
contemplated  by  the  employer  that  he  would;  and  the  em- 
ployer had  at  least  potential  control,  direction  and  super- 
vision of  all  the  work  Rheinwald  did  at  his  trade  for  the 
respondent." 

The  contrary  was  held  in  New  Jersey  in  Kennedy  v. 
David  Kaufman  &  Sons  Co.— (N.  J.)— ,  91  Atl.  99.  The 
court  said:  "What  the  plaintiff  claims  is  that  in  all  cases 
where  the  entire  work  is  left  to  an  independent  contractor 
the  employer  is  liable  for  defects  in  ways,  works,  machinery 
or  plant  belonging  to  or  furnished  by  such  independent 
contractor.  This  is  not  the  proper  construction  of  the 
statute,  but,  on  the  contrary,  the  employer  is  only  liable 
where  he  furnishes  the  ways,  works,  machinery  or  plant  in 
aid  of  part  execution  of  his  work,  and  does  not  make  him 
liable  where  the  entire  work  is  left  to  an  independent 
contractor,  who  furnishes  the  ways,  works,  machinery  or 
plant,  over  whose  negligent  conduct  in  not  remedying  de- 
fects the  employer  has  no  control." 

The  Massachusetts  Act  provides  (State  1911,  C.  751, 
Part  3,  §  17)  that  if  an  employer  under  the  act  enters  into 
a  contract  with  an  independent  contractor  to  do  his  work, 
he  is  liable  to  the  employees  of  the  independent  contractor 
just  as  if  they  were  his  own  employees  and  this  is  true 
whether  the  independent  contractor  is  a  subscriber  to  the 
act  or  not.  See  In  re  Sundine,  218  Mass.  1,  105  N.  E.  433, 
5  N.  C.  C.  A.  616. 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  23 

In  State  ex  rel  Virginia  &  Rainy  Lake  Co.  v.  Dist.  Ct.  of 
St.  Louis  County,  128  Minn.  43,  150  N.  W.  211,  7  N.  C.  C. 
A.  1076,  the  court  held  that  a  pieceworker  named  Bashko 
was  an  employee  and  not  an  independent  contractor.  The 
law  of  Minnesota  was  summed  up  by  the  court  in  the  fol- 
lowing headnote: 

"The  test  for  determining  whether  one  person  is  the 
employer  of  another  within  the  rule  making  the  employer 
responsible  for  injuries  resulting  from  the  negligence  of  his 
employees,  is  whether  such  person  possessed  the  power  to 
control  the  other  in  respect  to  the  transaction  out  of  which 
the  injury  arose." 

§  30.  Vaudeville  Actress  As  Independent  Contractor. 

A  vaudeville  actress,  employed  on  a  salary,  though  fur- 
nishing her  own  costumes  and  stage  materials,  was  held  an 
employee  and  not  an  independent  contractor.  Howard  v. 
Republic  Theater,  2  Cal.  Ind.  Ace.  Comm.,  Dec.  (1915),  514. 

§  31.  A  Lather  As  Independent  Contractor. 

A  workman,  who  agreed  to  put  on  laths  at  25  cents  a 
bunch  and  who  employed  others  to  help  him  at  the  same 
rate,  all  working  under  the  direction  of  the  foreman  with 
whom  the  agreement  was  made,  was  held  a  mechanic  and 
not  an  independent  contractor.  Jones  v.  Commonwealth, 
2  Mass.  Workm.  Comp.  Cas.  (1914)  721. 

§  32.  A  Teamster  As  Independent  Contractor. 

A  teamster  who  did  general  hauling  was  hauling  bags 
of  cement  for  a  company  at  25  cents  per  trip.  He  strained 
his  back.  Upon  making  claim  he  was  held  to  be  an  inde- 
pendent contractor.  In  re  Stull,  Ohio  Ind.  Comm.  (No. 
117139),  Oct.  4,  1915. 

§  33.  A  Whitewasher  As  Independent  Contractor. 

A  whitewasher  entered  into  a  contract  to  do  a  job  of 
whitewashing  for  a  certain  price  and  to  furnish  the  neces- 
sary material  and  labor.  He  was  injured  while  doing  this 
work  and  was  held  to  be  an  independent  contractor  and 


24  MANUAL  OF  COMPENSATION  LAW 

not  entitled  to  compensation.    McDermott  v.  Grindal  &  Sons 
111.  Ind.  Bd.,  Aug.  3,  1914. 

§  34.  A  Quarryman  As  Independent  Contractor. 

A  quarryman,  furnishing  his  own  blasting  materials  and 
teams  and  paid  by  the  cord  was  held  to  be  an  employee  and 
not  an  independent  contractor.  Ross  v.  Moore,  111.  Ind.  Bd., 
Nov.  6,  1914. 

§  35.  A  Taxicab  Driver  On  Shares  As  Independent  Con- 
tractor. 

A  taxicab  driver,  receiving  one-fourth  of  the  proceeds  for 
his  services  in  operating  the  company's  car,  was  an  inde- 
pendent contractor  and  not  an  employee  under  the  English 
Act.  Smith  v.  General  Motor  Cab  Co.  Ltd.  80  L.  J.  K.  B. 
839,  1  N.  C.  C.  A.  576. 

For  exhaustive  notes  on  the  relation  of  employer  and 
independent  contractor  under  the  acts,  see  7  N.  C.  C.  A. 
1076-1097;  10  N.  C.  C.  A.  835-852. 

The  following  recent  decisions  discuss  the  question 
whether  a  workman  is  an  employee  or  an  independent  con- 
tractor within  the  meaning  of  Workmen's  Compensation 
Acts:  Dorilon  Bros.  v.  Ind.  Ace.  Comm.  (Cal.),  159  Pac.  715; 
Western  Indemnity  Co.  v.  Pillsbury  et  al  (Cal.),  159  Pac. 
721 ;  In  re.  Contractors'  Mutual  Liab.  Corp'n,  113  N.  E.  460 
(Mass.) ;  Dyer  v.  James  Black  Masonry  &  Contracting  Co., 
158  N.  W.  959  (Mich.)  ;  Tuttle  v.  Embury  Martin  Lumber 
Co.,  158  N.  W.  875  (Mich.) ;  Kartell  v.  T.  H.  Simonson  & 
Son  Co.,  218  N.  Y.  345,  113  N.  E.  255 ;  Carstens  v.  Pillsbury 
et  al.  158  Pac.  218  (Cal.) ;  Perham  v.  American  Roofing  Co. 
et  al.  159  N.  W.  140  (Mich.). 

§  36.  Relation  of  Contractors  and  Subcontractors. 

A  number  of  the  acts  provide  that  under  certain  condi- 
tions contractors  shall  be  liable  for  compensation  due  to 
employees  of  subcontractors.  The  aim  of  such  provisions 
is  to  guarantee  compensation  to  all  of  the  employees  on  a 
job  let  to  a  general  contractor  for  the  reason  that  sub- 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  25 

contractors  are  often  not  financially  able  to  meet  the  de- 
mands of  workmen's  compensation  acts. 

In  some  States  the  employee  of  the  subcontractor,  for 
the  purposes  of  compensation,  is  made  the  employee  of  the 
general  contractor  and  intermediate  contractor  just  as  if  a 
contract  of  service  had  been  entered  into  directly  between 
them,  and  together  with  the  immediate  employer  are  joint- 
ly and  severally  liable  for  compensation  to  the  injured  em- 
ployee. Examples  of  such  acts  are  Illinois  Act,  1913,  § 
31;  Kansas  Laws,  1911,  c.  218,  §  4;  Massachusetts  Laws, 
1911,  c.  751,  Part  III.,  §  17;  Nevada  Laws,  1911,  c.  183,  §  10. 

In  Indiana  Laws,  1915,  c.  106,  §  14,  and  Kentucky  Laws, 
1916,  c.  33,  §  10,  the  principal,  contractor  or  intermediate 
contractor  is  made  liable  to  the  same  extent  as  the  immedi- 
ate employer,  but  the  claim  must  first  be  instituted  against 
the  immediate  employer  and  the  injury  must  have  occurred 
on  the  premises  where  the  principal  contractor  is  at  work 
or  on  those  controlled  by  him. 

Since,  under  these  last  mentioned  acts,  the  contractor 
is  only  liable  "to  the  same  extent  as  the  immediate  em- 
ployer," it  seems  that  there  could  be  no  liability  for  com- 
pensation to  the  employee  of  a  subcontractor  who  rejects 
the  act,  such  employee  would  have  his  common  law  action 
with  the  defenses  of  the  immediate  employer  removed.  His 
relation  to  the  principal  contractor  would  be  the  same  as 
before  the  act  was  passed.  It  was  held  in  England  that 
the  principal  will  not  be  held  liable  for  compensation  to  a 
man  who  has  no  claim  against  the  contractor.  Marks  v. 
Carne,  2  K.  B.  516,  25  Times  L.  R.  620,  2  B.  W.  C.  C.  186, 
L.  R.  A.  1916A  (note)  95. 

In  all  of  the  above  mentioned  States  the  contractor  pay- 
ing compensation  has  the  right  of  indemnity  from  the  one 
causing  the  injury. 

§  37.  Casual  Employment  In  General. 

Out  of  the  thirty-four  Workmen's  Compensation  Acts  in 
force  in  the  United  States  twenty-three  expressly  except 
"Casual  Employment"  from  their  operation.  This  is  true  in 


26  MANUAL  OF  COMPENSATION  LAW 

California,  Colorado,  Connecticut,  Hawaii,  Illinois,  Indiana, 
Iowa,  Maine,  Maryland,  Massachusetts,  Michigan,  Minne- 
sota, Nebraska,  New  Jersey,  Ohio,  Pennsylvania,  Rhode 
Island,  Texas,  Vermont,  West  Virginia,  Wisconsin  and 
Wyoming.  In  Kentucky  the  employee  must  be  "regularly 
engaged,"  and  thus  conversely  this  act  does  not  apply  to 
casual  employments. 

Casual  employment  is  a  question  of  fact,  the  determina- 
tion of  which  is  largely  influenced  by  the  circumstances  of 
the  contract  of  employment  and  the  nature  and  duration 
of  the  work  to  be  done.  A  definition  if  attempted  would 
prove  too  narrow  to  meet  the  connection  in  which  the 
phrase  is  used  in  some  acts,  or  too  broad  in  others,  as  the 
case  might  be.  In  order  to  determine,  therefore,  whether  a 
particular  employment  is  casual  or  not  the  phraseology  of 
the  act  in  question  must  be  carefully  noted.  For  instance, 
the  Nebraska  Act  provides  that  "casual"  shall  mean  "occa- 
sional, coming  at  certain  times  without  regularity  in  distinc- 
tion from  stated  or  regular."  Laws  Neb.,  1913,  c.  198,  pt. 
2,  §15  (3). 

§  38.  A  Definition  of  "Casual  Employment." 

The  New  Jersey  Supreme  Court  in  Sabella  v.  Brazileiro 
86  N.  J.  L.  505,  91  Atl.  1032,  6  N.  C.  C.  A.  958,  said:  "The 
ordinary  meaning  of  the  word  'casual'  is  something  which 
happens  by  chance  and  an  employment  is  not  casual — that 
is,  arising  through  accident  or  chance — where  one  is  em- 
ployed to  do  a  particular  part  of  a  service  recurring  some- 
what regularly  with  the  fair  expectation  of  its  continuance 
for  a  reasonable  period."  See  also  Dyer  v.  James  Black 
Masonry  &  Contracting  Co.— Mich.— ,  158  N.  W.  959. 

§  39.  Tests  As  To  Whether  Employment  Is  Casual  Or  Not. 

In  a  note  on  the  question  of  casual  employment  within 
the  meaning  of  the  various  Acts  in  6  Negligence  and  Com- 
pensation Cases  Annotated  958,  the  editor  has  summarized 
the  effect  of  the  decisions  concerning  the  question  of  casual 
employment  as  follows: 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  27 

"The  nature  of  the  agreement  between  the  workman 
and  the  employer  is  the  controlling  factor  in  determining 
the  character  of  the  employment  as  casual  or  not.  It  has 
been  suggested  that  a  proper  test  of  whether  or  not  the 
employment  is  casual  is :  If,  by  the  agreement  between  the 
employer  and  the  workman,  the  workman  undertakes  to 
work  for  the  employer  at  fixed  times  or  for  definite  periods 
separated  by  intervals — that  is,  if  the  workman  has  the 
right  to  come  and  is  expected  to  come  to  work  at  those 
times  without  being  specially  engaged  from  time  to  time — 
the  employment  is  not  casual.  If,  on  the  other  hand,  the 
employment  ceases  at  the  end  of  each  period  of  work,  in 
the  sense  that  the  workman  would  not  be  expected  to  work 
again  for  the  employer  without  a  new  engagement,  the 
employment  is  casual.  But  where  the  work  is  more  or  less 
regular,  although  separated  -by  intervals,  the  employer 
should  not,  and  probably  would  not,  be  allowed  to  escape 
liability  by  adopting  a  system  of  hourly  or  daily  engage- 
ments. It  is  apparently  along  these  lines  of  distinction 
that  the  English  decisions  have  proceeded.  See  Elliott, 
Workmen's  Compensation  Act  (6th  Ed.),  P.  277.  See  also 
the  cases  cited  in  4  N.  C.  C.  A.  502-507,"  and  6  N.  C.  C.  A. 
958-963  and  11  N.  C.  C.  A.  366-384. 

§  40.  Employment  For  One  Occasion  Is  Casual. 

In  Gaynor,  Admrx,  etc.,  v.  Standard  Accident  Insurance 
Co.,  217  Mass.  86,  104  N.  E.  339,  L.  K  A.  1916A,  363,  4  N. 
C.  C.  A.  502,  a  firm  of  caterers  did  not  have  any  regular 
waiters  in  their  employ,  but  engaged  men  who  followed  that 
occupation  as  the  occasion  arose.  While  serving  this  firm 
as  a  waiter  at  a  banquet  Joseph  Gaynor  received  an  injury 
by  accident  from  which  he  died.  In  reversing  the  decision 
of  the  Massachusetts  Industrial  Board  the  court  said: 

"It  would  be  difficult  to  conceive  of  employment  more 
nearly  casual  in  every  respect  than  was  that  of  the  em- 
ployee in  the  case  at  bar.  The  engagement  was  for  a  single 
day  and  for  one  occasion  only.  It  involved  no  obligation  on 
the  part  of  the  employer  or  employee  beyond  the  single  in- 


28  MANUAL  OF  COMPENSATION  LAW 

cident  of  the  work  for  four  or  five  hours  at  the  college. 
That  would  have  had  its  beginning  and  ending,  including 
outward  and  returning  journeys  (but  for  the  unfortunate 
accident),  within  a  period  of  less  than  twenty-four  hours. 
The  relation  between  the  waiter  and  the  caterer  had  no 
connection  of  any  sort  with  any  events  in  the  past.  Each 
was  entirely  free  to  make  other  arrangements  for  the 
future,  untrammeled  by  any  expressed  or  implied  expecta- 
tions of  future  employment.  The  employment  was  not 
periodic  and  regular  as  in  Gillen's  case,  215  Mass.  96,  102 
N.  E.  346."  See  also  In  re  King,  107  N.  E.  959,  220 
Mass.  290. 

§  41.  Intermittent  Employment  May  Be  Casual. 

Whether  or  not  intermittent  employment  is  casual  would 
seem  to  depend  upon  the  frequency  and  duration  of  the 
work  performed. 

The  employment  by  a  coal  dealer  of  a  teamster  with  his 
horses  and  wagon,  to  deliver  coal,  is  casual  where  the  evi- 
dence showed  that  at  one  period  he  had  been  employed  for 
five  days,  and  about  a  year  afterward  was  employed  for  a 
period  of  eight  days  which  were  not  consecutive,  ana  the 
teamster  was  hired  for  no  fixed  duration  of  time  and  for 
no  specific  job,  but  only  when  called  upon.  Cheevers'  case, 
219  Mass.  244,  106  N.  E.  861,  L.  R.  A.  1916A,  note  248. 

A  longshoreman  was  frequently  called  on  to  serve  a  firm 
of  ship  owners  in  unloading  their  ship.  The  court  said: 
"While  this  class  of  work  was  not  constant,  depending  on 
there  being  a  ship  of  the  prosecutor  in  port,  it  appears  that 
the  deceased  was  frequently  called  upon  by  the  prosecutors 
to  serve  them  in  this  particular  character  of  work,  being 
one  of  a  class  of  stevedores  ready  to  respond  when  called. 
We  think  this  supports  the  finding  that  the  employment 
was  not  'casual'  within  the  meaning  of  the  word  as  ex- 
pressed in  the  statute."  Sabella  v.  Brazileiro,  86  N.  J.  L. 
505,  91  Atl.  1032,  6  N.  C.  C.  A.  958.  See  also  Clements  v. 
Columbus  Saw  Mill  Co.,  Ohio  Ind.  Comm.  No.  101,  Oct.  21, 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  29 

1914,  6  N.  C.  C.  A.  (note)  959 ;  Dyer  v.  James  Black  Ma- 
sonry &  Contracting  Co.,  —  Mich.  — ,  158  N.  W.  959. 

§  42.  Employment  For  An  Indefinite  Period  Not  Casual 

When  the  employment  is  of  indefinite  duration  it  is 
generally  not  considered  casual. 

Where  an  employee  when  he  was  engaged  was  told 
that  he  "might  get  through  tonight,  you  might  not  for  a 
week,  or  two  or  three  days,"  it  was  held  that  he  was  not  a 
casual  employee.  Grogan  v.  Frankfort  General  Ins.  Co., 
Massachusetts  Industrial  Accident  Board,  6  N.  C.  C.  A.  961, 
note. 

A  workman  employed  for  an  indefinite  period  at  $5.00 
per  day,  to  work  on  a  contract  for  the  erection  of  a  struc- 
tural steel  building  is  not  in  a  casual  employment.  Scott 
v.  Payne  Bros.,  85  N.  J.  L.  446,  89  Atl.  927,  4  N.  C.  C.  A. 
682,  L.  R.  A.  1916A,  note  248, 

The  employment  was  not  casual  where  the  petitioner 
testified  that  the  employer  told  him  to  "come  Monday 
morning,  I  will  give  you  some  work  to  shave  the  skins;" 
that  the  pay  was  to  be  so  much  a  dozen,  and  more  if  better 
work  was  done.  Schaeffer  v.  De  Grottola,  85  N.  J.  L.  444, 
89  Atl.  921,  4  N.  C.  C.  A.  582,  L.  R.  A.  1916A,  note  248.  See 
also  In  re  McAuliffe,  Ohio  Ind.  Comm.  Oct.  9,  1914,  6  N.  C. 
C.  A.  (note)  958. 

§  43.  Failure  to  Stipulate  Wages  Does  Not  Make  Employ- 
ment Casual. 

A  workman  applying  for  work  was  asked  if  he  under- 
stood the  use  of  saws,  to  which  he  replied  that  he  did,  and 
he  was  put  to  work  without  any  agreement  as  to  the 
amount  of  wages  which  he  was  to  receive.  On  the  same  day 
that  he  started  to  work  he  was  injured  by  one  of  the  saws. 
It  was  contended  by  the  employer  that  the  workman  had 
deceived  him  as  to  his  representations  that  he  understood 
the  use  of  saws.  The  employer  also  contended  that  he  was 
a  mere  casual  employee  in  any  event,  because  there  was  no 
agreement  concerning  wages.  It  was  held  that  the  work- 


30  MANUAL  OF  COMPENSATION  LAW 

man  was  not  a  casual  employee  and  that  he  was  entitled  to 
compensation,  at  least  the  minimum  amount  specified  in 
the  statute  of  five  dollars  a  week,  for  the  number  of  weeks 
specified  in  the  act  for  the  loss  of  a  thumb  and  the  partial 
loss  of  the  use  of  the  first  finger  and  the  loss  of  the  use  of 
the  fourth  finger.  Mueller  v.  Oelkers  Mfg.  Co.  (Essex 
Common  Pleas,  February,  1913),  36  N.  J.  Law  J.  117,  6 
N.  C.  C.  A.  (note)  960. 

§  44.  Acts  Outside  Line  of  Duty  Under  Orders  of  Superior 
Not  Casual  Employment. 

Arthur  Howard  was  injured  in  the  employ  of  the  Edison 
Electric  Illuminating  Co.,  and  the  insurer  claimed  that  the 
employment  was  casual.  This  contention  was  based  upon 
the  fact  that  Howard's  employment  being  to  trim  trees  to 
keep  the  wires  of  the  company  clear,  he  was  at  the  par- 
ticular time  of  the  accident  trimming  a  tree  through  which 
none  of  its  wires  ran.  He  was  acting,  according  to  the 
statement  of  agreed  facts,  under  the  orders  of  his  foreman, 
who  in  turn  was  acting  under  the  orders  of  the  superintend- 
ent of  the  company.  The  court  upheld  a  decree  granting 
compensation,  saying: 

"In  the  present  case  Howard  was  employed  to  trim  trees, 
and  was  to  receive  his  orders  from  the  company  through 
Kennedy.  It  was  no  part  of  his  business  to  inquire  into 
the  right  of  the  company  to  trim  any  particular  tree.  He 
was  to  receive  his  orders  from  Kennedy  and  to  obey  them. 
At  the  time  he  was  hurt  he  was  doing  what  he  had  been 
hired  to  do.  The  work  was  not  casual."  In  re  Howard,  218 
Mass.  404,  105  N.  E.  636,  5  N.  C.  C.  A.  449. 

§  45.  "Employment  of  a  Casual  Nature." 

The  English  Act  uses  the  above  words  instead  of  those 
commonly  used  in  the  American  acts  relative  to  casual  em- 
ployment. In  the  case  of  Hill  v.  Begg,  2  K.  B.  802,  99  L. 
T.  Rep.  104,  24  T.  L.  Rep.  711,  77  L.  J.  K.  B.  1074,  1  B.  W. 
C.  C.  320,  4  N.  C.  C.  A.  502,  the  court  in  interpreting 
the  meaning  of  these  words,  said:  "The  words  are  not 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  31 

'who  is  casually  employed,'  but  'whose  employment  is  of  a 
casual  nature.'  I  have  to  investigate  what  is  the  character 
of  the  man's  employment,  not  what  is  the  tenure  of  the 
employment.  Is  the  employment  one  which  is  in  its  nature 
casual  ?  To  take  an  analogy  or  illustration  from  a  different 
subject,  say  land.  The  question  is  what  is  the  nature  or 
quality  of  the  land — is  it,  for  instance,  building  land  or 
agricultural  land — not  what  estate  is  held  in  the  land. 
Suppose  that  a  host,  when  from  time  to  time,  when  he 
entertains  his  friends  at  dinner  or  his  wife  gives  a  recep- 
tion or  a  dance,  has  been  in  the  habit  for  many  years  of 
employing  the  same  men  to  come  in  and  wait  at  his  table 
or  assist  at  the  reception,  it  may  be  said  that  their  em- 
ployment is  regular.  But  the  employment  is  of  a  casual 
nature.  It  depends  upon  the  whim  or  the  hospitable  in- 
stincts or  the  social  obligations  of  the  host  whether  he 
gives  any,  and  how  many,  dinner  parties  or  receptions,  and 
the  number  of  men  he  will  want  will  vary  with  the  number 
of  his  guests.  In  such  a  case  the  waiters  may  not  incor- 
rectly be  said  to  be  regularly  employed  in  an  employment 
of  a  casual  nature." 

For  note  on  casual  employment  under  the  English  Act 
see  L.  R.  A.  1916A,  120.  In  relation  to  it  see  also  L.  R.  A. 
1916A,  96 — for  note  on  "In  the  course  of  or  for  the  purpose 
of  the  employer's  trade  or  business." 

§  46.  English    and    American    Acts   Distinguished   As   To 
Casual  Employment. 

In  the  preceding  section  it  was  said  that  the  English 
Act  uses  the  words  "employment  of  a  casual  nature,"  and 
.  .  .  "otherwise  than  for  the  purposes  of  the  employer's 
trade  or  business."  Some  of  the  American  acts  merely  use 
the  words  "casual  employment,"  but  out  of  the  twenty- 
three  acts,  excepting  casual  employment  from  their  opera- 
tion fifteen  of  them  use  in  connection  with  the  phrase 
"casual  employment,"  the  phrases  "or  not  in  the  usual 
course  of  trade,"  "and  not  in  the  ordinary  course  of  busi- 
ness," "and  not  for  the  purposes  of  the  employer's  trade, 


32  MANUAL  OF  COMPENSATION  LAW 

business,  occupation  or  profession,"  "or  otherwise  than  for 
the  employer's  business,"  or  phrases  substantially  like  the 
above.  The  States  using  one  or  the  other  of  the  above 
phrases  which  can  be  said  generally  to  be  of  the  same  im- 
port, are  Illinois,  Indiana,  Wisconsin,  California,  Ohio,  Penn- 
sylvania, Connecticut,  Hawaii  (Ter.),  Maine,  Massachusetts, 
Michigan,  Minnesota,  Vermont,  Wyoming  and  Rhode  Island. 

It  will  be  seen,  therefore,  that  there  is  a  distinction 
between  the  meaning  of  casual  employment  under  the 
British  Act  and  under  the  American  acts.  This  distinction 
is  well  drawn  in  the  case  of  Gaynor  v.  Standard  Accident 
Insurance  Co.  217  Mass.  86,  104  N.  E.  339,  L.  R.  A.  1916A 
363,  4  N.  C.  C.  A.  502,  where  the  court  said : 

"As  is  pointed  out  in  Hill  v.  Begg  (1908),  2  K.  B.  802, 
at  P.  805,  its  words  descriptive  of  the  workman  are  not  one 
whose  employment  is  but  casual,  but  one  "whose  employ- 
ment is  of  a  casual  nature,  and  .  .  .  otherwise  than 
for  the  purposes  of  the  employer's  trade  or  business."  This 
difference  in  phraseology  can  not  be  treated  as  uninten- 
tional, but  must  be  regarded  as  deliberately  designed.  See 
Report  of  Massachusetts  Commission  on  Compensation  for 
Industrial  Accidents,  53.  Manifestly  its  effect  is  to  narrow 
the  scope  of  our  act  as  compared  with  the  English  Act. 
No  one  whose  employment  is  "casual"  can  recover  here, 
while  there  one  whose  employment  is  "of  a  casual  nature" 
comes  within  the  act,  provided  it  is  also  for  the  purpose  of 
the  employer's  trade  or  business.  It  is  possible  that  a  dis- 
tinction as  to  the  character  of  the  employment  may  be 
founded  upon  the  difference  between  the  modifying  word 
"casual"  used  in  our  actr,  and  the  words  "of  a  casual  nature" 
in  the  English  Act.  The  phrase  of  our  act  tends  to  indicate 
that  the  contract  for  service  is  the  thing  to  be  analyzed,  in 
order,  to  determine  whether  it  be  casual,  while  in  the  English 
Act  the  nature  of  the  service  rendered  is  the  decisive  test. 
This  distinction  appears  to  have  been  made  the  basis  of 
decision  in  Knight  v.  Bucknill,  6  B.  W.  C.  C.  160.  This 
consideration  is  to  be  noted  because  the  English  Act  was 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  33 

followed  in  many  respects  closely  by  our  act,  and  hence  even 
slight  differences  of  phraseology  may  be  assumed  to  have 
signification."  See  also  Blood  v.  Ind.  Ace.  Comm.  (Cal. 
App.)  157  Pac.  1140. 

§  47.  Employment  Casual  and  Not    In  the  Usual  Course  of 
the  Trade,  Business,  Profession  or  Occupation. 

In  a  number  of  the  acts  this  phrase  or  one  of  similar 
import  is  used  in  connection  with  the  word  "casual."  Con- 
struing this  phrase  the  Minnesota  court  in  State  ex  Rel 
City  of  Northfield  v.  Dist.  Court  of  Rice  Co. — Minn. — , 
155  N.  W.  103,  11  N.  C.  C.  A.  366,  said:  "The  language  of 
the  statute  leaves  no  room  for  construction.  Though  casual, 
if  the  employment  is  in  the  usual  course  of  the  business  of 
the  employer,  the  compensation  act  applies.  The  Minne- 
sota Act  is  in  this  respect  modeled  on  the  British  Work- 
men's Compensation  Law,  which  has  been  similarly  con- 
strued. .  .  Part  of  the  business  of  a  municipal  cor- 
poration is  the  improvement  and  repair  of  its  public  streets. 
Respondent,  when  injured,  was  an  employee  of  the  relator 
and  engaged  in  this  work.  The  compensation  act  applies." 

§  48.  Domestic  Employment. 

Employees  engaged  in  domestic  employments  are,  al- 
most universally,  expressly  excluded  from  the  operation 
of  the  acts.  There  are  not  any  reported  decisions  defining 
the  term  "domestic  employment"  under  acts  in  force  in  the 
United  States. 

Under  the  common  law  a  domestic  is  a  servant  or  hired 
laborer  residing  with  a  family.  10  Am.  and  Eng.  Ency.  4. 
In  Wakef  ield  v.  State,  41  Tex.  558,  the  court  said :  "Domes- 
tics, as  defined  by  Bouvier  in  his  law  dictionary,  are  those 
who  reside  in  the  house  with  the  master  they  serve,  the 
term  does  not  extend  to  workmen  and  laborers  employed 
out  of  doors.  By  Webster  a  domestic  is  a  servant  or  hired 
laborer  residing  with  a  family." 

"Servants  and  domestics"  were  defined  in  Cook  v. 
Dodge,  6  La.  Ann.  276,  to  be,  "those  who  receive  wages  and 


34  MANUAL  OF  COMPENSATION  LAW 

stay  in  the  house  of  the  person  paying  and  employing  them, 
for  his  service  or  that  of  his  family;  such  are  valets,  foot- 
men, cooks,  butlers  and  others  who  reside  in  the  house." 

A  page  boy  in  a  hotel,  who  sleeps  on  the  premises,  and 
who  is  principally  employed  as  a  messenger,  but  partly 
also  to  assist  in  dusting  the  reception  rooms,  is  not  within 
the  exemption  in  §  10  in  favor  of  "any  person  wholly  em- 
ployed as  a  domestic  servant."  Savoy  Hotel  Co.  v.  London 
County  Council,  1  Q.  B.  665. 

Domestic  means  attached  to  the  occupations  of  the 
home  or  the  family,  pertaining  to  home  life,  or  to  household 
affairs  or  interests.  Century  Diet.,  14  Cyc.  828. 

§  49.  Agricultural  Employment. 

Farmers  or  agriculturists  and  laborers  employed  in 
agriculture  are  expressly  excepted  from  the  operation  of 
almost  all  of  the  acts. 

In  Keaney  v.  Tappan,  et  al.  217  Mass.  5,  104  N.  E.  438,  4 
N.  C.  C.  A.  556,  Tappan  was  a  market  gardener,  who 
employed,  besides  farm  laborers,  four  drivers  and  four 
drivers'  helpers,  who  delivered  his  produce  to  the  city. 
Keaney  was  engaged  exclusively  in  farm  labor.  At  the  time 
of  the  injury  he  was  on  the  top  of  a  load  of  hay,  gathered 
for  use  on  Tappan's  farm.  Tappan  elected  to  operate  under 
the  Massachusetts  act  in  so  far  as  his  four  drivers  and  their 
helpers  were  concerned,  and  he  took  out  a  policy  insuring 
them  under  the  act.  He  was  exempted  by  the  terms  of  the 
act  as  to  all  of  his  employees  in  agricultural  work.  The 
court  said:  "The  Workmen's  Compensation  Act  was  not 
intended  to  confer  its  advantages  upon  farm  laborers,  or 
to  impose  its  burdens  upon  farmers.  St.  1911,  c.  751,  pt.  1, 
art.  2.  The  legislative  policy  of  exempting  them  from 
statutory  benefits  and  liabilities  established  in  addition  to 
those  of  the  common  law  disclosed  in  the  Employers'  Liabil- 
ity Act,  St.  1909,  c.  514,  art  142,  has  been  continued  in  the 
Workmen's  Compensation  Act.  A  farmer  employing  labor- 
ers in  agriculture  suffers  no  harm  in  not  undertaking  to 
become  a  subscriber  under  the  Workmen's  Compensation 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  35 

Act.  Hence,  it  is  apparent  that  a  farmer  who  chooses  to 
avail  himself  of  its  terms  and  thereby  to  confer  the  boon 
of  its  protection  upon  his  employees,  does  so  on  other 
grounds  than  those  which  might  actuate  the  manufacturer 
or  other  employers  of  labor.  .  .  .  The  act  is  a  practical 
measure  designed  for  use  among  a  practical  people.  There 
appears  to  be  no  reason  for  saying  that  a  farmer  may  not 
adopt  it  if  he  desires.  Any  contract  of  insurance  made  by 
him  under  its  terms  is  valid  and  enforceable.  On  the  other 
hand,  if  he  does  not  desire  to  make  it  available,  for  all  of 
his  employees,  there  is  no  insuperable  objection  to  his  un- 
dertaking an  insurance  for  a  limited  portion  of  them.  If 
there  are  those,  separable  from  others  by  classification  and 
definition,  whose  labor  is  more  exposed  or  dangerous  or 
whom  he  may  desire  to  protect  for  any  other  reason,  there 
is  nothing  in  the  act  reasonably  interpreted  to  show  why 
he  may  not  do  so.  .  .  .  The  exemption  applies  to  all 
farmers  so  far  as  concern  farming  operations  whether 
carrying  on  other  business  or  not." 

See  also  Uphoff  v.  Ind.  Bd.  of  111.,  Ill  N.  E.  128,  271  HI. 
312. 

"Agriculture  is  the  art  or  science  of  cultivating  the 
ground,  especially  in  fields  or  in  large  quantities,  including 
the  preservation  of  the  soil,  the  planting  of  seeds,  the  rais- 
ing and  harvesting  of  crops,  and  the  rearing,  feeding  and 
management  of  live  stock;  tillage;  husbandry;  farming." 
2  Am.  and  Eng.  Ency.  26.  The  above  definition  from  Web- 
ster was  quoted  in  Dillard  v.  Webb,  55  Ala.  474. 

"In  its  general  sense  the  word  also  includes  gardening 
and  horticulture.  2  C.  J.  988,  citing  Simons  v.  Lovell,  7 
Heisk  (Tenn.)  510;  Benzel  v.  Grogan,  67  Wis.  147,  150, 
29  N.  W.  895. 

""A  person  is  actually  engaged  in  the  science  of  agri- 
culture when  he  derives  the  support  of  himself  and  his 
family  in  whole,  or  in  part,  from  the  tillage  and  cultivation 
of  the  fields.  He  must  cultivate  something  more  than  a 
garden  though  it  may  be  much  less  than  a  farm.  If  the 


36 

area  cultivated  can  be  called  a  field,  it  is  agriculture,  as 
well  in  contemplation  of  law  as  in  the  etymology  of  the 
word.  And  if  this  condition  be  fulfilled,  the  uniting  of  any 
other  business,  not  inconsistent  with  the  pursuit  of  agri- 
culture, does  not  take  away  the  protection  of  the  act." 
Springer  v.  Lewis,  22  Pa.  191,  193. 

In  Coleman  v.  Bartholomew  —  App.  Div. — ,  161  N.  Y. 
Supp.  560,  the  court  in  defining  farm  laborers,  said :  "The 
common  hired  man  on  a  farm  is  required  to  perform  a 
great  variety  of  work.  His  duties  are  not  confined  to 
plowing,  planting  and  harvesting.  Tilling  the  soil  and 
garnering  in  the  crops  may  be  the  principal  work  of  the 
farm  laborer,  but  they  are  by  no  means  his  exclusive  work. 
All  the  multifarious  work  of  operating  a  farm  must  be 
done  by  somebody;  and  who  is  to  do  it  except  the  farm 
laborer?  It  is,  of  course,  necessary  to  keep  the  farm  ma- 
chinery in  repair — the  reapers,  mowers,  corn  harvesters, 
sulky  plows,  wagons,  harness,  etc.  It  is  just  as  necessary 
to  keep  the  farm  buildings  in  repair,  and  occasionally  to 
make  small  additions  to  them.  This  is  part  of  the  routine 
work  of  the  farm  laborer;  just  as  much  so  as  milking  the 
cows,  cleaning  off  the  horses,  building  fences,  putting  a  new 
point  on  a  plow,  doctoring  a  sick  horse,  butchering  the  hogs, 
greasing  the  wagons,  assisting  the  threshers,  driving  the 
team  to  market  and  innumerable  other  familiar  duties. 

Is  the  hired  man,  who  pounds  his  finger  while  shingling 
the  pig  pen,  any  the  less  a  'farm  laborer'  than  when  he 
pounds  his  finger  while  building  a  fence?  It  is  the  duty 
of  a  farm  laborer  to  build  a  load  of  hay;  it  is  likewise  his 
duty  to  help  shingle  the  barn  to  protect  the  hay  from 
the  elements.  Both  processes  are  necessary  in  order  "to 
preserve  the  hay.  Both  are  essentially  within  the  scope  of 
the  duties  of  the  farm  laborer,  and  it  makes  no  difference 
in  principle  whether  he  breaks  his  leg  by  falling  from  the 
roof  of  the  barn  or  the  load  of  hay." 


38  MANUAL  OF  COMPENSATION  LAW 

case  of  Laura  Staley,  Admrx.,  etc.,  v.  Illinois  Central  R.  R. 
Co.,  268  111.  356,  109  N.  E.  342,  L.  R.  A.  1916A,  450.  The 
court  held  that  the  Federal  Employers'  Liability  Act  cover- 
ed the  entire  field  of  compensation  for  injury  to  employees 
engaged  in  interstate  transportation  by  rail,  and  a  State 
compensation  act  is  therefore  not  applicable  in  case  of 
injury  to  such  employee,  without  negligence  on  the  part  of 
the  employer,  although  no  provision  may  be  made  for  such 
cases  by  the  Federal  act.  To  the  same  effect  is  Smith  v. 
Ind.  Ace.  Comm.,  26  Cal.  App.  560,  147  Pac.  601. 

NOTE. — See  further  and  compare  with  decisions  of  U.   S.   Supreme  Court  handed 
down  after  this  book  was  in  print  and  quoted  in  full  in  §  265,  Post. 

§  53.  Winfield  v.  N«w  York,  C.  &  H.  R.  R.  Co. 

In  Winfield  v.  New  York  C.  &  H.  R.  R.  Co.,  216  N.  Y. 
284,  110  N.  E.  614,  10  N.  C.  C.  A.  916,  the  court  took  a 
view  opposite  to  the  Staley  case  (supra).  The  views  of 
the  court  are  summarized  as  follows: 

The  Federal  Employers'  Liability  Act  provides  a  method 
of  compensation  for  employees  of  interstate  carriers  only 
where  the  injury  resulted  from  the  employer's  negligence. 
Workmen's  compensation  acts  provide  a  remedy  regard- 
less of  negligence.  Upon  the  principle  that  where  Congress 
has  chosen  to  keep  silent,  the  States  may  legislate  in  regard 
to  the  control  of  interstate  carriers  by  rail  within  their 
borders,  the  New  York  court  held  that  when  an  employee 
of  an  interstate  carrier  by  rail  was  injured  without  negli- 
gence on  the  part  of  the  carrier,  the  New  York  Act  applied, 
while  the  converse  was  true  if  the  carrier  was  negligent. 
To  the  same  effect,  see  Hammill  v.  Pennsylvania  R.  Co.,  87 
N.  J.  L.  388,  94  Atl.  313. 

The  above  cases  illustrate  the  divided  opinion  of  the 
courts  on  this  subject.  A  complete  discussion  of  all  of  the 
cases  concerning  this  question  can  be  found  in  L.  R.  A. 
1916A  (note) ,  461-465 ;  also  9  N.  C.  C.  A.  (note)  286-307, 
6  N.  C.  C.  A.  (note)  920-933,  10  N.  C.  C.  A.  (note)  916-925. 

NOTE. — See  further  and  compare  with  decisions  of  1T.  S.  Supreme  Court  handed 
down  after  this  book  was  in  print  and  quoted  in  full  in  §  265,  Post. 

§  54.  Admiralty  Law  As  Affected  By  Compensation  Acts. 

In  State  of  Washington,  Ex.  Rel.  Frank  Jarvis  v.  Dag- 
gett  et  al.  — ,  Wash.  — ,  151  Pac.  648,  L.  R.  A.  1916A,  446, 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  39 

the  court  said :  "The  case  presents  the  question  whether  a 
seaman  employed  upon  a  boat  operating  upon  Puget  Sound, 
and  engaged  in  intrastate  commerce,  is  covered  by  the  pro- 
visions of  the  industrial  insurance  or  workmen's  compensa- 
tion act.  ...  It  will  thus  be  seen  that  Art.  4283  of  the 
Federal  statutes  limits  the  liability  of  the  owners  of  a 
vessel.  This  limited  liability  becomes  the  extent  of  recov- 
ery. Beyond  the  liability  as  limited  by  the  statute  there  can 
be  no  recovery.  The  Workmen's  Compensation  Act  limits 
the  amount  for  which  an  employer  may  become  liable  as 
specified  in  the  act.  The  Congress  of  the  United  States, 
having  passed  a  law  which  limits  or  measures  the  extent  of 
the  liability  of  the  owner  of  a  vessel  to  a  workman  who  has 
sustained  an  injury,  the  legislature  would  not  have  the 
power  to  fix  another  and  different  standard  or  measure." 
The  contrary  was  held  in  Re  Walker,  215  N.  Y.  529,  109 
N.  E.  604,  in  that  case  because  of  the  fact  that  articles  24 
and  256  of  the  Judicial  Code  of  the  United  States  provide 
that  admiralty  jurisdiction  is  not  exclusive  but  allows  also 
the  common  law  remedy  wherever  possible,  and,  because 
the  Workmen's  Compensation  Act  is  a  substitute  for  the 
common  law  remedy,  the  court  held  that  the  New  York  Act 
applied  to  a  workman  who  was  injured  while  working  upon 
a  navigable  river.  The  court  said :  "But  it  is  argued  that 
the  act  purports  to  grant  exemption  from  further  liability 
to  those  who  comply  with  it,  and  that  as  such  exemption  is 
not  effectual  in  the  case  of  employers  whose  property  may 
be  proceeded  against  in  admiralty,  it  is  as  to  them  a  denial 
of  the  equal  protection  of  the  laws.  The  exemption,  how- 
ever, is  from  suits  at  common  law,  of  which  all  employers 
complying  with  the  act  equally  have  the  benefit.  If  another 
remedy  remain,  it  results  from  the  nature  of  the  case,  and 
not  from  any  attempt  at  discrimination  on  the  part  of  the 
legislature.  All  in  the  same  case  are  treated  alike.  Em- 
ployers in  the  situation  of  the  appellant  are  subjected  to 
two  remedies  now,  precisely  as  they  were  before  the  pas- 
sage of  the  act.  A  new  remedy  has  been  substituted  for  the 


40  MANUAL  OF  COMPENSATION  LAW 

common  law  remedy,  from  which  the  employer  is  granted 
exemption." 

In  the  Fred  E.  Sander,  208  Fed.  724,  4  N.  C.  C.  A.  891, 
it  was  held  that  the  Washington  Workmen's  Compensation 
Act  did  not  supersede  the  right  of  workmen  to  proceed  in 
admiralty  against  a  vessel  for  an  injury  sustained.  But  in 
the  Fred  E.  Sander,  212  Fed.  545,  5  N.  C.  C.  A.  97,  the  same 
court  held  that  where  an  injured  employee  has  made  claim 
for  and  received  compensation  under  the  act,  he  can  not 
thereafter  proceed  in  admiralty  against  the  employer  for 
the  same  injury.  In  that  case  the  facts  were  as  follows : 

James  A.  Thompson  brought  action  in  admiralty  against 
the  vessel  named  for  damages  for  personal  injuries  received 
by  Kim.  In  his  libel  the  employee  admitted  the  receipt  of 
$360  from  the  Industrial  Insurance  Commission  of  the  State 
of  Washington,  but  averred  that  the  same  was  a  gratuitous 
payment  out  of  a  fund  provided  by  the  State,  that  the 
defendant  had  never  contributed  anything  to  said  fund, 
and  that  the  amount  was  in  no  manner  accepted  as  payment 
for  the  injuries.  In  taking  exceptions  to  the  libel  the 
defendant  contended  that  the  receipt  of  this  money  under 
the  compensation  act  constituted  an  election  which  barred 
the  bringing  of  an  action,  and  the  court  upheld  this  con- 
tention. Judge  Neterer,  who  delivered  the  opinion,  said : 

"The  common  law  right  of  action  being  withdrawn,  it 
is  immaterial  whether  payment  has  been  made  by  the 
employer  to  the  'accident  fund'  or  not.  The  fact  that  the 
defaulting  employer  is  not  protected  against  actions  for 
injury  in  case  of  default  of  payment  after  demand  will 
not  defeat  the  injured  workman's  right  to  take  under  the 
act,  should  he  so  elect. 

But  for  the  enactment  of  the  Workmen's  Compensation 
Act  of  the  State  of  Washington,  libelant  would  have  two 
remedies ;  one  his  common  law  action  for  damages  against 
the  owners,  and  the  other  a  proceeding  in  admiralty.  The 
selection  of  the  one  remedy  would  bar  a  proceeding  in  the 
other.  A  party  can  not  enforce  both  remedies,  and  will  be 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  41 

required  to  elect  whether  to  pursue  his  common  law  remedy 
or  proceed  in  admiralty.  The  Workmen's  Compensation 
Act,  while  it  took  away  the  common  law  action,  provided 
in  its  stead  another  remedy.  If  the  libelant  determined 
to  obtain  relief  from  the  substitute  which  is  provided  for 
his  common  law  remedy,  and  received  compensation  under 
such  act,  then  he  can  not  proceed  in  admiralty  and  thus 
obtain  double  compensation  for  the  injury  of  which  he 
complains." 

In  Stoll  v.  Pacific  Steamship  Co.,  205  Fed.  169,  the  court 
said:  "Congress  having  in  no  way  legislated  in  the  prem- 
ises, at  least  so  far  as  interstate  commerce  by  water  is 
concerned,  the  State  has  the  right  to  enact  laws  incidentally 
affecting  interstate  commerce." 

For  further  discussion  of  these  principles  see  L.  R.  A. 
1916A  (note)  461-465,  10  N.  C.  C.  A.  (note)  688-699. 

NOTE. — See  further  and  compare  with  decisions  of  U.  S.  Supreme  Court  handed 
down  after  this  book  was  In  print  and  quoted  in  full  in  §  265,  Post. 

§  55.  Elective  Acceptance  of  Compensation  Acts. 

New  York  passed  the  first  compensation  law  in  1910. 
It  was  compulsory  as  to  employers  in  certain  hazardous 
industries.  This  law  was  held  unconstitutional  in  the  case 
of  Ives  v.  South  Buffalo  Ry.  Co.  201  N.  Y.  271.  The  result 
has  been  that  all  subsequent  acts  passed  by  the  various 
States  give  the  employer  the  right  to  exercise  some  kind  of 
an  option  where  there  is  any  possible  constitutional  objec- 
tion to  a  compulsory  act. 

Acts  compulsory  on  both  employer  and  employee  with 
certain  limitations  and  exceptions  are  »now  in  force  in 
California,  Maryland,  New  York,  Ohio,  Oklahoma,  Wash- 
ington and  Wyoming. 

The  great  majority  of  the  acts  are  elective  in  some 
degree  and  the  trend  of  legislation  seems  to  be  away  from 
compulsory  compensation  acts.  In  twelve  States  election  to 
operate  under  the  act  is  presumed,  both  as  to  employer 
and  employee,  in  the  absence  of  notice  to  the  contrary. 
These  States  are  Colorado,  Connecticut,  Indiana,  Iowa, 
Kansas,  Louisiana,  Minnesota,  Nebraska,  Nevada*  New 
Jersey,  Pennsylvania  and  Wisconsin. 


42  MANUAL  OF  COMPENSATION  LAW 

In  six  States  the  employer  must  give  written  notice  to 
the  proper  authorities  of  his  intention  to  operate  under  the 
act,  while  the  employee,  under  certain  conditions,  is  pre- 
sumed to  have  elected  to  accept  the  act  in  the  absence  of 
notice  to  the  employer  to  the  contrary.  These  States  are 
Massachusetts,  Michigan,  Montana,  Rhode  Island,  Texas 
and  West  Virginia. 

In  Illinois  and  Oregon  acceptance  of  the  act  is  presumed 
as  to  certain  hazardous  employments,  but  as  to  nonhazard- 
ous  employments  the  employer  must  give  written  notice 
of  his  intention  to  accept.  But  in  either  case  the  employee 
is  presumed  to  have  accepted  without  notice  to  the  con- 
trary. 

In  Arizona  the  act  is  compulsory  as  to  the  employers 
affected  by  it,  but  the  employee  need  not  elect  whether  to 
accept  the  benefits  of  the  act  or  to  sue  at  law  for  damages 
until  after  the  injury  has  been  received.  The  same  is  true 
concerning  the  employee  in  New  Hampshire,  but  the  em- 
ployer must  elect  in  writing  whether  to  be  governed  by  the 
act  or  not. 

In  Kentucky  both  employer  and  employee  must  elect  in 
writing  to  operate  under  the  act.  In  New  York  there  are 
two  laws  in  effect,  one  passed  in  1910  is  elective  by  writ- 
ten agreement  of  the  employer  and  employe,  and  the  other 
passed  in  1913  is  compulsory  in  the  hazardous  employ- 
ments enumerated. 

§  56.  Employee  Cannot  Accept  Where  the  Employer  Re- 
jects the  Act. 

It  was  held  in  Illinois  in  the  case  of  Favro,  Admr.,  v. 
Superior  Coal  Co.  188  111.  App.  203,  in  a  proceeding  arising 
under  the  act  of  1911,  that,  "Where  an  employer  refuses 
to  accept  the  provisions  of  the  act  of  1911  an  employee  has 
no  option  in  the  matter.  It  is  only  when  the  employer 
accepts  its  provisions  that  the  employee  may  reject  it  and 
must  give  notice  thereof.  Employer  and  employee  auto- 
matically accept  the  provisions  of  the  act  by  not  filing  an 
election  not  to  accept  the  act,  and  under  the  act  the  em- 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  .  43 

ployee  only  has  the  right  of  election  where  the  employer 
has  elected  to  accept  its  provisions.  It  was  unnecessary  to 
aver  that  the  employee  either  had  or  had  not  accepted  it, 
since  under  the  act  the  rejection  of  it  by  the  employer  pre- 
cludes the  employee  from  rejecting  it."  See  also  Dietz  v. 
Big  Muddy  Coal  &  Iron  Co.,  263  111  480,  5  N.  C.  C.  A.  419. 

§  57.  Incomplete    Compliance    With    Act    By    Employer — 
Effect. 

In  the  case  of  Bernard  v.  Michigan  United  Traction  Co., 
—  Mich.  — ,  154  N.  W.  565,  the  Traction  Company,  on  Nov. 
9,  1912,  filed  notice  with  the  Accident  Board  of  its  inten- 
tion to  accept  the  terms  of  the  Michigan  Workmen's  Com- 
pensation Act,  and  asked  the  board  for  the  privilege  of 
carrying  its  own  risk  as  to  payment  of  benefits.  The 
board  did  not  approve  of  the  election  until  November  20, 
1912,  and  after  that  date  the  notices  required  by  the  act 
were  posted  by  the  company.  The  employee  Bernard,  being 
in  the  service  of  the  company  at  the  time  the  election  was 
made,  had  thirty  days  in  which  to  reject  the  act,  after 
which  he  was  presumed  to  have  accepted  it.  The  accident 
to  Bernard  occurred  on  the  12th  day  of  November,  eight 
days  before  the  action  of  the  board  approving  of  the  elec- 
tion made  by  the  company.  This  action  was  delayed  by  the 
failure  of  the  company  to  furnish  certain  information  de- 
sired by  the  board.  In  the  meantime,  while  Bernard  was 
in  the  hospital,  on  December  3d,  1912,  he  signed  certain 
papers  by  which  he  made  application  for  his  pay  under  the 
act.  He  claimed  he  did  not  know  the  legal  effect  of  these 
papers  and  the  company  claimed  this  was  an  election.  The 
court  held  to  the  contrary  and  held  further  that  an  em- 
ployer cannot  bring  itself  within  the  act  until  its  notice 
of  election  to  carry  its  own  risk  has  been  approved  by  the 
board;  and,  an  accident  occurring  before  the  employer 
comes  under  the  act,  by  the  means  provided,  will  not 
become  subject  to  the  act  merely  because  the  employee 
made  statements  or  accepted  compensation  after  the  em- 
ployer was  in  fact  regularly  under  the  act.  Bernard  was 


44  MANUAL  OF  COMPENSATION  LAW 

allowed  to  sue  at  law  for  his  injuries.  See  also  Shevchenko 
v.  Detroit  United  Ry.  —  Mich.  — ,  155  N.  W.  423. 

§  58.  Election  by  Employee  Within  Thirty  Days  After  Pas- 
sage of  Act. 

In  the  case  of  Green  v.  Appleton  Woolen  Mills  162,  Wis. 
145,  155  N.  W.  958,  the  court  said:  "On  October  2,  1911, 
the  defendant  elected  to  come  under  the  provisions  of  the 
Workmen's  Compensation  Act.  The  accident  happened  on 
the  day  following.  The  plaintiff  had  not  exercised  his  right 
of  election.  It  is  obvious  that  the  act  did  not  apply  to 
him  because  his  contract  of  employment  was  made  before 
the  employer  became  subject  to  the  terms  of  the  act,  and 
the  thirty  days  within  which  he  might  make  an  election 
under  subdivision  2  of  section  2394-8  had  not  expired  when 
he  was  injured." 

§  59.  Election  By  Employee  Thirty  Days  Prior  to  Accident. 

In  the  case  of  Harris  v.  Hobart  Iron  Co.,  127  Minn.  399, 
149  N.  W.  662,  the  court,  construing  the  Minnesota  act, 
said:  "The  act  was  approved  April  24,  1913,  to  be  in 
effect  on  October  1,  1913.  Section  11  of  the  act  provides, 
among  other  things,  that  every  employer  and  employee  is 
presumed  to  have  accepted  the  act  unless  thirty  days 
prior  to  the  accident  he  elects  not  to  accept  its  provisions 
and  signifies  his  election  by  giving  a  notice  in  a  manner  spe- 
cifically prescribed.  .  .  .  After  the  plaintiff  served  and 
filed  his  election  not  to  accept — that  is,  on  October  29,  1913 
— he  was  not  subject  to  the  provisions  of  the  compensation 
act.  Prior  to  that  time  he  was.  He  was  injured  while 
subject  to  the  act." 

§  60.  A  Notice  to  Accept  or  Reject  the  Act  Effective  Until 
Withdrawn. 

In  the  case  of  Bateman,  Admx.,  v.  Carterville  &  Big 
Muddy  Coal  Co.  188  111.  App.  357,  it  was  held  under  the 
Illinois  Act,  that  when  an  employer  rejects  the  act  his 
election  to  do  so  remains  in  force  until  withdrawn.  See  also 
Synkus  v.  Big  Muddy  Coal  &  Iron  Co.  190  111.  App.  602. 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  45 

§  61.  Election  of  Acts  of  Two  Different  States. 

This  situation  arises  in  the  case  of  Johnson  v.  Nelson, 
150  N.  W.  620,  128  Minn.  158.  Frank  A.  Johnson  brought 
action  against  Peter  Nelson  for  damages  for  injuries  alleged 
to  have  been  suffered  by  reason  of  the  negligence  of  Nelson, 
the  employer.  These  injuries  were  received  on  June  30, 
1915,  while  Johnson  was  at  work"  for  Nelson  in  Wisconsin 
on  railroad  construction.  Nelson's  answer  alleged  that  the 
case  was  governed  by  the  Wisconsin  Workmen's  Compensa- 
tion Act,  and  that  the  plaintiff  Johnson  could  not  therefore 
recover  in  this  suit.  Judgment  was  rendered  in  Nelson's 
favor  in  the  district  court  of  Hennepin  county,  and  the 
plaintiff  appealed. 

The  employee  had  been  engaged  in  the  same  kind  of 
work  for  the  same  employer  in  Minnesota  for  some  time, 
and  there  was  no  definite  contract  as  to  the  duration  of 
the  employment.  Eighteen  days  before  the  injury  he  had 
been  sent  into  Wisconsin  to  work.  The  employer  had  elect- 
ed to  come  under  the  Wisconsin  Act  as  far  as  his  work  in 
that  State  was  concerned,  but  the  employee  claimed  to  know 
nothing  of  that  statute. 

The  act  provides  that  the  employee  in  such  case  shall 
be  subject  to  its  provisions  if  he  gives  no  notice  at  the 
time  of  entering  the  employment  of  his  election  not  to  be 
so  subject.  The  court  concluded  that  the  plaintiff,  by  his 
failure  to  give  notice,  had  accepted  the  provisions  of  the 
Wisconsin  Act,  and  that  his  sole  remedy  was  under  it.  The 
judgment  of  the  court  below  was  therefore  affirmed. 

§  62.  Common  Law  Defenses  Not  Available  to  Non-Electing 
Employer. 

In  practically  every  State  or  Territory  having  an  elec- 
tive act,  the  penalty  upon  the  employer  for  rejection,  is  the 
loss  of  the  right  to  set  up  the  common  law  defenses  of 
fellow  servant,  contributory  negligence  and  assumption  of 
the  risk  in  an  action  at  law  for  damages  by  an  injured 
employee. 


46  MANUAL  OF  COMPENSATION  LAW 

In  Wheeler  v.  Contoocook  Mills  Corpn.  77  N.  H.  551, 
94  Atl.  265,  the  Supreme  Court  of  New  Hampshire,  follow- 
ing the  universal  rule,  said: 

"Another  objection  made  to  the  constitutionality  of  the 
law  is  based  upon  the  taking  away  of  certain  defenses  and 
alleged  discriminations  and  inequalities  in  the  provisions 
made  for  regaining  the  same  by  accepting  the  provisions  of 
the  act.  It  was  within  the  legislative  power  to  abolish 
entirely  the  defenses  of  contributory  negligence,  assump- 
tion of  risk  and  the  fellow  servant  rule." 

While  ordinarily  the  doctrine  of  assumed  risk  cannot 
be  invoked  by  a  nonelecting  employer  in  a  suit  for  damages 
against  him  by  an  employee,  it  was  held  in  Massachusetts 
that  this  provision  of  the  Workman's  Compensation  Law  did 
not  take  away  the  employer's  defense  of  contractual  as- 
sumption of  risk.  In  Ashton  v.  Boston  &  Maine  R.  R.  222 
Mass.  65,  109  N.  E.  820,  L.  R.  A.  1916  B,  1281,  12  N.  C.  C. 
A.  837,  the  court  said:  "The  doctrine  of  contractual  as- 
sumption of  risk,  that  is,  that  the  risk  has  one  of  the 
dangers  incident  to  the  employment,  is  not  an  affirmative 
defense,  but  stands  upon  an  entirely  different  footing.  With 
reference  to  risks  and  dangers  covered  by  the  contract,  the 
employer  owes  the  employee  no  duty  and  so  cannot  be 
held  guilty  of  negligence.  Murch  v.  Thomas  Wilson's  Sons 
&  Co.,  168  Mass.  408 ;  Gleason  v.  Smith,  172  Mass.  50.  As 
the  contractual  assumption  of  risk  is  not  a  matter  of  af- 
firmative defense  and  can  be  shown  under  a  general  denial, 
it  is  not  affected  by  that  part  of  the  Workmen's  Compensa- 
tion Act  above  referred  to." 

Negligence  on  the  part  of  the  servant  and  assumed  risk 
was  no  bar  to  recovery  when  the  master  has  failed  to  accept 
the  Ohio  Act.  Crucible  Steel  Forge  Co.  v.  Moir,  219  F. 
151, 135  C.  C.  A.  49.  See  also  Price  v.  Cloverleaf  Coal  Min- 
ing Co.  188  111.  App.  27,  and  Lydman  v.  De  Haas,  185  Mich. 
128,  151  N.  W.  718,  8  N.  C.  C.  A.  649. 

Under  the  Wisconsin  Act  an  employer  who  elects  the 
act  can  rely  on  the  defense  of  assumed  risk,  fellow  servant 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  47 

and  contributory  negligence  as  against  an  employee  who  re- 
jects the  act.  Karny  v.  N.  W.  Malleable  Iron  Co.,  160  Wis. 
316,  151  N.  W.  786. 

Under  the  Ohio  Act  an  employer  who  has  five  or  more 
workmen  and  who  rejects  the  act,  loses  his  common  law 
defenses.  It  was  held  that  this  does  not  acknowledge  the 
basis  of  recovery  on  the  ground  of  negligence  beyond  what 
it  existed  at  common  law,  and  the  employer  is  only  required 
to  exercise  ordinary  care  under  all  of  the  circumstances  of 
the  case.  Gerthung  v.  Stambaugh-Thompson  Co.,  I  Ohio 
App.  176,  34  0.  Cir.  Ctr.  385. 

Where  an  employer,  subject  to  the  Mass.  Act,  rejected  it 
and  was  sued  for  personal  injury  at  common  law,  the  only 
question  was  whether  or  not  the  employer  was  guilty  of 
negligence.  Pope  v.  Heywood  Bros.  &  Wakefield,  221  Mass. 
143,  108  N.  E.  1058. 

It  was  held  in  Illinois  that  the  legislature  had  the  right 
to  abolish  the  common  law  defenses,  inasmuch  as  they  were 
established  by  the  courts  and  not  by  the  Constitution. 
Strom  v.  Postal  Telegraph-Cable  Co.,  271  111.  514,  111  N.  E. 
555. 

In  Iowa  the  common  law  defenses  are  removed  from 
an  employer  who  rejects  the  act,  but  it  was  held  that  the 
act  could  not  be  construed  to  create  absolute  liability  for 
injuries  to  an  employee  when  the  employer  was  entirely 
free  from  blame.  Hunter  v.  Colfax  Consol.  Coal  Co.,  154 
N.  W.  1037— amended  157  N.  W.  145,  11  N.  C.  C.  A.  886. 

Contractural  assumption  of  risk  was  held  not  to  be  af- 
fected by  the  Mass.  Act.  Ashton  v.  Boston  &  M.  R.  Co.,  222 
Mass.  65^  109  N.  E.  820,  L.  R.  A.  1916B  1281. 

The  fact  that  the  West  Virginia  Act  denies  the  benefit 
of  common  law  defenses  to  employers  covered  by  the  act, 
but  not  electing  it,  does  not  make  it  unconstitutional.  De 
Francesco  v.  Pinney  Mining  Co.,  86  S.  E.  777  (West  Va.), 
10  N.  C.  C.  A.  1015. 

The  common  law  defenses  are  not  constitutional  guaran- 
tees, but  merely  rules  of  law  which  the  legislature  can 


48  MANUAL  OF  COMPENSATION  LAW 

abolish  in  any  manner  they  see  fit.  Hawkins  v.  Bleakley, 
220  Fed.  378;  Hotel  Bond  Co.s  Appeal,  89  Conn.  143,  93 
Atl.  245;  Havis  v.  Cudahy  Ref.  Co.,  95  Kan.  505,  148  Pac. 
626;  Wheeler  v.  Contoocook  Mills  Corp.,  77  N.  H.  551,  94 
Atl.  265 ;  Sexton  v.  Newark  Dist.  Teleg.  Co.,  84  N.  J.  L.  85, 
86  Atl.  451,  3  N.  C.  C.  A.  569;  Ives  v.  South  Buffalo  R.  Co., 
201  N.  Y.  271,  94  N.  E.  431,  34  L.  R.  A.  (N.  S.)  162,  1  N.  C. 
C.  A.  517 ;  Opinion  of  the  Justices,  209  Mass.  607,  96  N.  E. 
308,  1  N.  C.  C.  A.  557;  Mathison  v.  Minneapolis  Street  R. 
Co.,  126  Minn.  286,  148.  N.  W.  71,  5  N.  C.  C.  A.  871 ;  Borgnis 
v.  Falk  Co.,  147  Wis.  327, 133  N.  W.  209,  37  L.  R.  A.  (N.  S.) 
489,  3  N.  C.  C.  A.  649 ;  State  Ex  rel  Yapel  v.  Creamer,  85 
Ohio  St.  349,  97  N.  E.  602,  39  L.  R.  A.  (N.  S.)  694,  1  N.  C. 
C.  A.  30;  Greene  v.  Caldwell,  170  Ky.  571, 186  S.  W.  648. 

§  63.  Abrogation  of  Common  Law  Defenses  Does  Not  Vio- 
late "Due  Process  of  Law"  Amendment. 

In  Second  Employers'  Liability  Cases,  223  U.  S.  1,  on 
page  50,  32  Sup.  Ct.  169,  on  page  175,  Mr.  Justice  Van 
Devanter,  speaking  for  the  court,  said:  "Of  the  objection 
to  these  changes  it  is  enough  to  observe:  First.  'A  person 
has  no  property,  no  vested  interest,  in  any  rule  of  the 
common  law.  That  is  only  one  of  the  forms  of  municipal 
law,  and  is  no  more  sacred  than  any  other.  Rights  of 
property  which  have  been  created  by  the  common  law  can 
not  be  taken  away  without  due  process,  but  the  law  itself, 
as  a  rule  of  conduct,  may  be  changed  at  the  will  .  .  . 
of  the  legislature,  unless  prevented  by  constitutional  limita- 
tions. Indeed,  the  great  office  of  statutes  is  to  remedy 
defects  in  the  common  law  as  they  are  developed,  and  to 
adapt  it  to  the  changes  of  time  and  circumstances.' ' 

§  64.  Allowing  Defenses  to  Certain  Employers  While  Deny- 
ing Them  to  Others  Not  Unconstitutional. 

In  Jeffrey  Mfg.  Co.  v.  Blagg,  235  U.  S.  571,  59  Law  Ed. 
364,  35  Sup.  Ct.  Rep.  167,  7  N.  C.  C.  A.  570,  the  action  was 
based  on  provisions  of  the  Workmen's  Compensation  Act  of 
Ohio,  the  question  being  raised  as  to  the  constitutionality 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  49 

of  a  provision  abrogating  the  defenses  of  certain  employers. 
This  act  (sections  1465-37  to  1465-108,  G.  C.),  in  its  original 
form,  established  an  elective  compensation  system  with 
an  insurance  fund  to  be  maintained  by  premium  payments 
by  employers  accepting  its  provisions.  Employers  of  five 
or  more  persons  failing  to  accept  the  provisions  of  the  act 
were  deprived  of  the  defenses  of  fellow  servant,  contribu- 
tory negligence  and  assumption  of  risks.  Under  an  amend- 
ed Constitution  the  law  in  its  present  form  is  compulsory, 
but  the  case  in  hand  arose  under  the  elective  act.  The  de- 
fendant company,  plaintiff  in  error  in  the  present  instance, 
was  sued  by  Harry  0.  Blagg  to  recover  damages  for  injuries 
received  by  him  while  in  its  employment,  and,  not  having 
accepted  the  provisions  of  the  act,  it  was  deprived  of  the 
defenses  named.  Blagg  recovered  a  judgment  in  the  court 
of  common  pleas  of  Franklin  county,  Ohio,  which  judgment 
was  affirmed  in  the  court  of  appeals  and  the  Supreme  Court 
of  the  State.  The  case  was  then  brought  on  a  writ  of  error 
to  the  Supreme  Court  of  the  United  States  on  the  question 
of  constitutionality,  and  specifically  as  to  the  validity  of  the 
provision  distinguishing  between  employers  of  five  or  more 
workmen  and  those  employing  less  than  five  persons.  The 
Supreme  Court,  speaking  by  Mr.  Justice  Day,  sustained  the 
law  as  constitutional  in  an  opinion  which,  following  the 
statement  of  facts,  reads  mainly  as  follows : 

"The  fact  that  the  negligence  of  a  fellow  servant  is  more 
likely  to  be  a  cause  of  injury  in  the  large  establishments, 
employing  many  in  their  service,  and  that  assumed  risk 
may  be  different  in  such  establishments  than  in  smaller 
ones,  is  conceded  in  argument,  and,  is,  we  think,  so  obvious, 
that  the  State  legislature  can  not  be  deemed  guilty  of  arbi- 
trary classification  in  making  one  rule  for  large  and  another 
for  small  establishments  as  to  these  defenses. 

The  stress  of  the  present  argument,  in  the  brief  and  at 
the  bar,  is  upon  the  feature  of  the  law  which  takes  away 
the  defense  of  contributory  negligence  from  establishments 
employing  five  or  more  and  still  permits  it  to  those  concerns 


50  MANUAL  OF  COMPENSATION  LAW 

which  employ  less  than  five.  Much  of  the  argument  is 
based  upon  the  supposed  wrongs  to  the  employee,  and  the 
alleged  injustice  and  arbitrary  character  of  the  legislation 
here  involved  as  it  concerns  him  alone,  contrasting  an  em- 
ployee in  a  shop  with  five  employees  with  those  having  less. 
No  employee  is  complaining  of  this  act  in  this  case.  The 
argument  based  upon  such  discrimination,  so  far  as  it 
affects  employees  by  themselves  considered,  can  not  be 
decisive ;  for  it  is  the  well-settled  rule  of  this  court  that  it 
only  hears  objections  to  the  constitutionality  of  laws  from 
those  who  are  themselves  affected  by  its  alleged 
unconstitutionality  in  the  feature  complained  of.  (Cases 
cited.)  .  .  . 

This  court  has  many  times  affirmed  the  general  propo- 
sition that  it  is  not  the  purpose  of  the  fourteenth  amend- 
ment in  the  equal  protection  clause  to  take  from  the  States 
the  right  and  power  to  classify  the  subjects  of  legislation. 
It  is  only  when  such  attempted  classification  is  arbitrary 
and  unreasonable  that  the  court  can  declare  it  beyond  the 
legislative  authority.  .  .  . 

Certainly  in  the  present  case  there  has  been  no  attempt 
at  unjust  and  discriminatory  regulations.  The  legislature 
was  formulating  a  plan  which  should  provide  more  ade- 
quate compensation  to  the  beneficiaries  of  those  killed  and 
to  the  injured  in  such  establishments,  by  regulating  con- 
cerns having  five  or  more  employees.  It  included,  as  we 
have  said,  all  of  that  class  of  institutions  in  the 
State.  .  .  . 

This  is  not  a  statute  which  simply  declares  that  the 
defense  of  contributory  negligence  shall  be  available  to  em- 
ployers having  less  than  five  workmen  and  unavailable  to 
employers  with  five  and  more  in  their  service.  This  provision 
is  part  of  a  general  plan  to  raise  funds  to  pay  death  and 
injury  losses  by  assessing  those  establishments  which  em- 
ploy five  and  more  persons  and  which  voluntarily  take  ad- 
vantage of  the  law.  Those  remaining  out  and  who  might 
come  in  because  of  the  number  employed  are  deprived  of 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  51 

certain  defenses  which  the  law  might  abolish  as  to  all  if  it 
was  seen  fit  to  do  so.  If  a  line  is  to  be  drawn  in  making 
such  laws  by  the  number  employed,  it  may  be  that  those 
very  near  the  dividing  line  will  be  acting  under  practically 
the  same  conditions  as  those  on  the  other  side  of  it,  but  if 
the  State  has  the  right  to  pass  police  regulations  based  upon 
such  differences — and  this  court  has  held  that  it  has — we 
must  look  to  general  results  and  practical  divisions  between 
those  so  large  as  to  need  regulation  and  those  so  small  as 
not  to  require  it  in  the  legislative  judgment.  It  is  that  judg- 
ment which,  fairly  and  reasonably  exercised,  makes  the  law ; 
not  ours. 

We  are  not  prepared  to  say  that  this  act  of  the  legis- 
lature, in  bringing  within  its  terms  all  establishments  hav- 
ing five  or  more  employees,  including  the  deprivation  of  the 
defense  of  contributory  negligence  where  such  establish- 
ments neglect  to  take  the  benefit  of  the  law,  and  leaving 
the  employers  of  less  than  five  out  of  the  act  was  classifi- 
cation of  that  arbitrary  and  unreasonable  nature  which 
justifies  a  court  in  declaring  this  legislation  unconstitu- 
tional. 

It  follows  that  the  judgment  of  the  Supreme  Court  of 
the  State  of  Ohio  is  affirmed." 

§  65.  Common  Law  Actions  Abolished.     Remedy  of  Acts 
Exclusive. 

In  Peet  v.  Mills,  76  Wash.  437,  136  Pac.  685,  Ann.  Cas. 
1915D  154,  4  N.  C.  C.  A.  786,  L.  R.  A.  1916A  358,  the  facts 
were  as  follows:  Peet  sued  E.  M.  Mills,  president  of  the 
Seattle  R.  &  S.  Ry.  Co.  for  injuries  received  in  January, 
1912,  while  in  the  employment  of  the  company  as  a  motor- 
man.  The  compensation  act  of  1911  abolished  the  common 
law  system,  and  all  civil  actions  and  civil  causes  of  action 
against  employers  for  personal  injuries  of  employees.  Con- 
ceding that  he  had  no  action  against  the  company,  Peet 
maintained  that  he  had  a  right  of  action  against  the  presi- 
dent, Mills,  on  account  of  his  person  failure  to  maintain  a 
block  signal  system  which  had  at  one  time  been  in  use,  but 


52  MANUAL  OF  COMPENSATION  LAW 

was  not  in  operation  at  the  time  the  injury  was  received. 
It  was  contended  that  as  the  act  was  in  derogation  of  the 
common  law,  it  should  be  strictly  construed  as  having  no 
effect  as  against  others  than  employers,  and  further  that 
the  title  of  the  act  was  not  broad  enough  to  include  the 
abrogation  of  the  doctrine  of  negligence  as  against  anyone 
except  employers.  Both  points  were  rejected  by  the  su- 
preme court  on  grounds  which  appear  in  the  following  quo- 
tation from  its  opinion  as  delivered  by  Judge  Morris . 

"To  say  with  appellant  that  the  intent  of  the  act  is 
limited  to  the  abolishment  of  negligence  as  a  ground  of 
action  against  an  employer  only  is  to  overlook  and  read 
out  of  the  act  and  its  declaration  of  principle  the  economic 
thought  sought  to  be  crystallized  into  law,  that  the  industry 
itself  was  the  primal  cause  of  the  injury  and,  as  such, 
should  be  made  to  bear  its  burdens.  The  employer  and 
employee  as  distinctive  producing  causes  are  lost  sight  of 
in  the  greater  vision,  that  the  industry  itself  is  the  great 
producing  cause,  and  that  the  cost  of  an  injury  suffered  in 
any  industry  is  just  as  much  a  part  of  the  cost  of  production 
as  the  tools,  machinery,  or  material  that  enter  into  that 
production,  recognizing  no  distinction  between  the  injury 
and  destruction  of  machinery  and  the  injury  and  destruc- 
tion of  men  in  so  far  as  each  is  a  proper  charge  against  the 
cost  of  production.  The  legislature  in  this  act  was  dealing, 
not  so  much  with  causes  of  action  and  remedies,  as  with  this 
great  economic  principle  that  has  obtained  recognition  in 
these  later  years,  and  it  sought  in  the  use  of  language  it 
deemed  apt  to  embody  this  principle  into  law.  That  in  so 
doing  the  legislative  mind  was  intent  upon  the  abolishment 
of  all  causes  of  action  that  may  have  heretofore  existed, 
irrespective  of  the  persons  in  favor  of  whom  or  against 
whom  such  right  might  have  existed,  is  equally  clear  from 
the  language  of  section  5  of  the  a,ct,  containing  a  schedule 
of  awards,  and  providing  that  each  workman  injured  in  the 
course  of  his  employment  should  receive  certain  compensa- 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  53 

tion,  and  'such  payment  shall  be  in  lieu  of  any  and  all  rights 
of  action  whatsoever  against  any  person  whomsoever.' 

Upon  the  second  point  we  think  there  is  no  room  for 
argument.  The  first  clause  of  the  title  indicates  that  it  is 
an  act  relating  to  the  compensation  of  injured  workmen  in 
any  industry  of  the  State,  and  the  employment  of  the  lan- 
guage further  on  in  the  title,  'abolishing  the  doctrine  of 
negligence  as  a  ground  for  recovery  of  damages  against 
employers/  is  indicative  of  the  evil  the  act  seeks  to  over- 
come rather  than  the  new  remedy  created.  The  title  is 
plainly  broad  enough  to  indicate  that  the  act  is  intended  to 
furnish  the  only  compensation  to  be  allowed  workmen  sub- 
sequent to  its  becoming  law,  and  as  such  clearly  includes 
any  and  all  rights  of  action  theretofore  existing  in  which 
such  compensation  might  have  been  obtained." 

The  case  of  McRoberts  v.  National  Zinc  Co.,  93  Kan. 
364,  144  Pac.  247,  also  illustrates  this  point:  E.  F.  Mc- 
Roberts was  injured  while  in  the  employment  of  the  com- 
pany named  and  sought  to  recover  in  an  action,  claiming 
both  benefits  under  the  compensation  act  and  damages  at 
common  law.  Under  the  compensation  act  of  the  State 
election  to  accept  its  provisions  is  presumed  in  the  absence 
of  an  affirmative  rejection,  which  action  had  not  been 
taken,  so  that  both  parties  were  within  its  provisions.  The 
company  demurred  to  the  declaration,  contending  that  Mc- 
Roberts was  not  entitled  to  claim  on  both  bases,  but  must 
elect  the  ground  of  his  procedure.  The  district  court  of 
Wyandotte  county  overruled  the  objections  of  the  company 
and  the  case  proceeded  to  trial  on  the  question  of  damages 
at  common  law,  the  court  saying  that  the  claim  under  the 
compensation  law  would  be  taken  under  advisement  for 
future  action.  The  result  of  the  trial  was  a  verdict  for  the 
plaintiff  in  the  full  amount  claimed,  whereupon  the  company 
appealed,  insisting  that  the  remedy  provided  by  the  com- 
pensation law  is  exclusive  where  it  applies.  This  contention 
was  sustained  by  the  supreme  court,  citing  its  decision  in 
Shade  v.  Cement  Co.,  92  Kan.  146,  139  Pac.  1193.  The 
decision  in  the  case  cited  had  not  been  announced  when 


54  MANUAL  OF  COMPENSATION  LAW 

the  present  case  was  tried  nor  when  the  appeal  was  taken, 
but  it  was  conceded  at  the  present  time  that  the  case  should 
be  settled  under  the  compensation  law  in  accordance  with 
the  ruling  in  the  Shade  case.  The  question  was  therefore 
submitted  as  to  whether,  under  the  record  as  presented,  the 
judgment  of  the  court  below  might  be  treated  as  an  award 
of  compensation.  The  court  held  that  this  was  impossible, 
since  to  do  so  would  be  for  it  to  try  and  determine  an  issue 
that  was  not  considered  nor  decided  by  the  trial  court. 
Judge  Johnston,  speaking  for  the  court,  said: 

"The  elements  which  enter  into  a  recovery  of  compensa- 
tion differ  radically  from  those  which  warrant  a  recovery 
of  damages,  and  the  evidence  which  would  support  the 
issue  in  one  is  inappropriate  to  offer  in  support  of  the 
other.  Compensation  for  partial  or  total  disability  depends 
mainly  on  the  average  earnings  of  the  injured  employee  for 
certain  periods  preceding  the  injury,  while  the  damages 
awarded  were  not  measured  by  earnings,  but  were  based  on 
the  loss  which  resulted  from  pain  and  suffering  endured  by 
appellee  and  to  be  endured  in  the  future,  as  well  as  the 
loss  sustained  by  the  disfigurement  of  his  hand.  The  extent 
of  the  incapacity  resulting  from  the  injury  is  an  important 
question  for  determination.  Is  the  disability  total  or  partial, 
and,  if  partial,  is  it  of  a  permanent  nature  ?  The  age  of  the 
employee  is  a  consideration,  as  well  as  the  grade  of  employ- 
ment in  which  he  had  been  engaged  for  the  year  preceding 
the  accident,  and,  in  determining  what  is  a  just  average  of 
the  earnings  of  the  employee,  it  is  important  to  know 
whether  his  employment  had  been  casual  or  continuous, 
and  whether  he  had  been  engaged  by  more  than  one  em- 
ployer. No  issue  was  formed  on  the  matter  of  earnings, 
and  the  attention  of  the  jury  was  not  called  to  the  evidence 
relating  to  wages  and  the  award  which  the  jury  made  was 
not  based  on  an  average  of  earnings.  On  the  contrary,  as 
we  have  seen,  the  jury  were  instructed  to  measure  the 
recovery  by  the  pain  and  suffering  which  appellee  had  en- 
dured before  the  trial  and  would  probably  undergo  in  the 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  55 

future — a  measure  wholly  inconsistent  with  that  prescribed 
in  the  compensation  statute.  Maximum  and  minimum  limi- 
tations are  placed  on  the  average  of  the  earnings  of  an 
employee,  and  there  is  also  a  provision  that  payments  for 
total  and  partial  disability  shall  in  no  case  extend  over  a 
period  of  eight  years.  Here,  as  we  have  seen,  no  considera- 
tion was  given  to  any  limitation,  and  the  jury  were  author- 
ized to  award  damages  that  appellee  might  sustain  through- 
out his  life  by  reason  of  the  injury.  If  compensation  is  to  be 
contested,  an  issue  should  be  framed  between  the  parties 
as  to  the  right  to  compensation,  each  having  an  opportunity 
to  offer  testimony  in  support  of  the  issue,  and  the  com- 
pensation should  be  measured  as  the  statute  provides.  There 
is  no  basis  on  which  this  court  can  treat  the  verdict  as  an 
award  of  compensation,  nor  is  it  warranted  in  directing  a 
judgment  for  any  amount  on  the  record,  as  it  stands." 

The  judgment  was  therefore  reversed  and  the  case  re- 
manded for  a  new  trial  under  the  compensation  act. 

§  66.  Election  of  Acts  By  Minors. 

In  a  number  of  States  minors  are  made  sui  juris  for  the 
purpose  of  electing  the  acts,  provided  they  are  of  legal 
working  age.  This  is  true  in  California,  Colorado,  Illinois, 
Maryland,  Michigan,  Minnesota,  Nebraska,  Kentucky,  Ohio, 
Oregon,  Rhode  Island,  Washington,  Wisconsin  and  Wyom- 
ing. 

In  Connecticut  the  minor  can  elect  if  he  has  no  parent 
or  guardian.  In  Indiana  and  Vermont  the  parent  or  guard- 
ian must  elect  for  him.  In  Louisiana  a  minor,  18  years  old, 
can  elect,  but  under  that  age  the  guardian  must  elect  for 
him.  In  Maine  the  minor  can  elect  and  also  the  parent  or 
guardian,  and  the  minor  is  bound  by  their  election.  In 
New  Jersey  or  Pennsylvania  an  election  to  reject  the  act 
can  only  be  made  by  the  parent  or  guardian.  In  many  of 
the  States  no  reference  is  made  to  minors  who  are  included 
under  the  general  term  employees.  For  note  on  applicabil- 
ity of  acts  to  minor  workmen  see  6  N.  C.  C.  A.  763-774. 


56  MANUAL  OF  COMPENSATION  LAW 

§  67.  Minors  Made  Sui  Juris. 

In  most  of  the  compensation  States  minors  are  made 
sui  juris  for  the  purpose  of  electing  the  acts,  either  specifi- 
cally or  by  direct  inference. 

This  term  is  defined  in  27  Am.  &  Eng.  Ency.,  366,  as 
follows :  "A  person  who  can  validly  contract  and  bind  him- 
self by  a  legal  obligation,  uncontrolled  by  any  other  person, 
is  said  to  be  sui  juris;  in  other  words,  one  subject  to  no  in- 
capacity such  as  nonage,  coveture,  or  insanity  is  said  to  be 
sui  juris." 

The  legislature  has  the  power  to  declare  a  minor  of  full 
age  for  the  purpose  of  making  contracts.  Dickens  v.  Carr, 
84  Mo.  658;  Herkey  v.  Agar  Mfg.  Co.,  90  Misc.  457,  153 
N.  Y.  Supp.  369. 

The  Kentucky  Act  makes  minors  legally  employed  sui 
juris.  In  Green  v.  Caldwell,  170  Ky.  571,  186  S.  W.  648, 
the  court  said:  "It  is  true  that  this  legislation  does  make 
material  changes  in  the  law  of  parent  and  child,  but  a  suf- 
ficient answer  to  all  of  the  objections  urged  is  that  the 
legislature,  in  undertaking  to  fix  the  status  of  minors  under 
this  act,  was  not  restrained  by  any  constitutional  provision. 
It  had  unquestioned  power  to  make  such  changes  in  what 
may  be  called  the  business  relations  of  parent  and  child 
as  seemed  to  it  advisable." 

§  68.  Minors  In  Prohibited  Employments. 

Generally  speaking  the  fact  that  a  minor  is  unlawfully 
employed  does  not  take  him  out  of  the  coverage  of  the  acts. 
But  in  Minnesota,  New  Jersey  and  Wisconsin  the  act  does 
not  apply  where  the  minor  is  employed  in  violation  of  law. 
Pettee  v.  Noyes  (Minn.),  157  N.  W.  995;  Stetz  v.  F.  Mayer 
Boot  &  Shoe  Co.  (Wis.),  156  N.  W.  971;  Hetzel  v.  Watson 
Piston  Ring  Co.  (N.  J.),  98  Atl.  306.  Of  course,  this  does 
not  affect  the  minor's  action  at  law.  But  it  was  held  in 
Wisconsin  in  the  case  of  Foth  v.  Macomber  &  Whyte  Rope 
Co.,  161  Wis.  549, 154  N.  W.  369, 11  N.  C.  C.  A.  599,  that  the 
contrary  was  true  if  the  minor  was  of  legal  age  to  be  em- 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  57 

ployed,  although  injured  in  a  prohibited  employment.  The 
facts  were  as  follows: 

Clarence  Foth  brought  action  for  damages  for  injury  to 
his  left  arm  received  while  in  the  employ  of  the  company 
named.  The  employee  was  a  minor  who  was  of  such  age  as 
to  be  legally  employed,  but  not  on  the  hazardous  work  which 
he  was  doing  when  injured.  He  claimed  that  under  these 
circumstances  he  was  entitled  to  bring  a  liability  action, 
while  the  employer  argued  that  the  remedy  would  be  under 
the  compensation  law.  The  court  took  the  latter  view  and 
reversed  the  judgment  in  the  plaintiff's  favor.  The  com- 
pensation statute  includes  as  an  employee  every  person  in 
the  service  of  another,  etc.,  "including  minors  who  are  legal- 
ly permitted  to  work  under  the  laws  of  the  State."  The 
court  said: 

"We  reach  the  conclusion  that  the  legislative  purpose 
was  as  above  indicated,  and  the  words  '(who,  for  the  pur- 
poses of  section  2394-8,  shall  be  considered  the  same  and 
shall  have  the  power  of  contracting  as  adult  employees),' 
were  added  to  render  clear  that,  without  prejudice  to  liabil- 
ity under  the  penal  statutes,  any  minor  who  is  legally  per- 
mitted to  work  at  all  in  a  gainful  occupation  is  to  be  regard- 
ed as  being  competent  to  contract,  as  regards  subjecting 
himself  to  the  provisions  of  the  workmen's  compensation 
law,  as  fully  as  an  adult  person." 

For  note  on  minor  legally  permitted  to  work,  but  not  in 
particular  work  to  which  assigned  see  11  N.  C.  C.  A.  599-604. 

§.69.  Parents  Right  of  Action  for  Loss  of  Services  of  Minor 
Electing  the  Act. 

Some  of  the  acts  expressly  exclude  the  parents'  right  of 
action  for  injuries  to  a  minor  accepting  the  act.  Most  of 
the  others  do  so  by  making  the  remedy  provided  by  the  act 
exclusive.  But  in  King  v.  Viscoloid  Co.,  219  Mass  420,  106 
N.  E.  988,  7  N.  C.  C.  A.  254,  the  contrary  was  held.  The 
facts  were :  The  mother  of  a  minor  son  injured  in  the  em- 
ploy of  the  company  named  brought  action  under  the  com- 
mon law  for  the  loss  of  his  services.  It  was  agreed  that, 


58  MANUAL  OF  COMPENSATION  LAW 

even  though  the  son  had  received  full  compensation  under 
the  law,  she  was  entitled  to  recover  unless  this  right  of 
action  was  barred  by  the  provisions  of  the  workmen's  com- 
pensation act.  The  court  held  that  the  minor  did  not  and 
could  not  waive  this  independent  right  of  the  parent,  nor- 
had  the  act,  either  expressly  or  by  implication,  taken  away 
this  common  law  right,  and  ordered  a  judgment  in  her  favor 
for  the  sum  previously  agreed  upon  as  the  proper  one  if 
the  plaintiff  was  entitled  to  recover. 

For  note  on  parents'  common  law  right  of  action  as  af- 
fected by  acts,  see  7  N.  C.  C.  A.  254-260. 

§  70.  Employer  Can  Not  Set  Up  Infancy  as  Bar  to  Action 
for  Compensation. 

In  Hoey  v.  Superior  Laundry  Co.,  85  N.  J.  Law  119,  88 
Atl.  823,  the  company  objected  that  the  employee  was  a 
minor,  and  that  since  the  statute  was  based  on  contracts, 
the  minor  was  under  such  disability  that  her  contracts  were 
voidable  and  an  agreement  to  be  bound  thereby  was  not 
constitutional.  As  to  this  point  the  court  in  its  syllabus 
held: 

"In  an  action  by  an  employee  to  recover  compensation  for 
injuries  received  while  in  the  course  of  employment,  the 
defendant  can  not  set  up  the  infancy  of  the  plaintiff  as  a 
bar  to  the  action,  infancy  being  a  personal  privilege  which 
none  but  the  infant  can  take  advantage  of,  and  a  contract 
voidable  by  an  infant  binds  a  person  of  full  age." 

§  71.  Conclusiveness  of  Claim  by  Minor  for  Compensation. 

In  Hoey  v.  Superior  Laundry  Co.,  85  N.  J.  Law  119,  88 
Atl.  823,  the  question  was  also  raised  as  to  whether  or  not 
the  judgment  in  this  case  would  be  binding  on  an  infant  the 
same  as  if  a  suit  at  law  to  recover  damages  had  been 
brought,  and  on  this  point  the  official  syllabus  reads  as 
follows : 

"The  judgment,  in  an  action  brought  by  an  infant,  by 
his  next  friend,  to  recover  compensation  as  an  employee 
for  injuries  suffered  in  the  course  of  employment,  under 


RELATION  OF  EMPLOYER  AND  EMPLOYEE  59 

the  statute  prescribing  the  liability  of  an  employer  in  such 
cases,  binds  the  plaintiff  to  the  extent  of  the  questions  in- 
volved, as  effectively  as  in  a  suit  for  damages,  generally, 
without  reliance  upon  the  compensatory  features  of  the 
statute." 

§  72.  Misrepresentation  of  Age  by  Minor  to  Obtain  a  Pro- 
hibited Employment  Does  Not  Relieve  Employer. 

In  Sturges  &  Burn  Manufacturing  Co.  v.  Beauchamp, 
United  States  Supreme  Court  (Dec.  1,  1913),  34  Supreme 
Court  Reporter,  page  60,  Justice  Hughes  said: 

"The  Federal  question  presented  is  whether  the  statute, 
as  construed  by  the  State  court,  contravenes  the  fourteenth 
amendment.  It  can  not  be  doubted  that  the  State  was  en- 
titled to  prohibit  the  employment  of  persons  of  tender  years 
in  dangerous  occupations.  (Cases  cited.)  It  is  urged  that 
the  plaintiff  in  error  was  not  permitted  to  defend  upon  the 
ground  that  it  acted  in  good  faith,  relying  upon  the  repre- 
sentation made  by  Beauchamp  that  he  was  over  sixteen. 
It  is  said  that,  being  over  fourteen,  he  at  least  had  attained 
the  age  at  which  he  should  have  been  treated  as  responsible 
for  his  statements.  But,  as  it  was  competent  for  the  State, 
in  securing  the  safety  of  the  young,  to  prohibit  such  em- 
ployment altogether,  it  could  select  means  appropriate  to 
make  its  prohibition  effective,  and  could  compel  employers, 
at  their  peril,  to  ascertain  whether  those  they  employed 
were  in  fact  under  the  age  specified.  The  imposition  of 
absolute  requirements  of  this  sort  is  a  familiar  exercise  of 
the  protective  power  of  government.  (Cases  cited.)  And 
where,  as  here,  such  legislation  has  reasonable  relation  to  a 
purpose  which  the  State  was  entitled  to  effect,  it  is  not 
open  to  constitutional  objection  as  a  deprivation  of  liberty  or 
property  without  due  process  of  law.  (Cases  Cited.) 

It  is  also  contended  that  the  statute  denied  to  the  plain- 
tiff in  error  the  equal  protection  of  the  laws,  but  \he  classi- 
fication it  established  was  clearly  within  the  legislative 
power." 


60  MANUAL  OF  COMPENSATION  LAW 

§  73.  Joint  Voluntary  Application  for  the  Benefits  of  the 
Act. 

It  is  not,  of  course,  necessary  for  any  one  engaged  in 
the  excepted  employments  to  change  their  status  in  any 
way  because  of  the  passage  of  a  workmen's  compensation 
law.  If  such  an  employer,  however,  desires  to  agree  with' 
certain  of  his  employees  to  accept  the  act  because  their 
employment  is  hazardous,  or  for  any  other  reason,  such 
partial  election  does  not  affect  his  relation  to  other  em- 
ployees. Keaney  v.  Tappan,  217  Mass,  5,  104  N.  E.  438,  4 
N.  C.  C.  A.  556. 


CHAPTER  II 

ACCIDENT,  INJURY  AND  DISEASE 

Section. 

74.  Use  of  the  words  "accident"  and  "injury." 

75.  Meaning  of  "accident,"  generally. 

76.  Meaning  of  "accident,"  within  the  acts. 

77.  Meaning  of  "injury,"  within  the  acts. 

78.  Injury,  accidental,  though  caused  by  negligence. 

79.  Accident  must  occur  at  a  definite  time — occupational  diseases 

not  accidents. 

80.  Meaning  of  phrase  "where  injury  is  proximately  caused  by 

accident." 

81.  Diseases  as  "accidents"  or  "injuries"  in  general. 

82.  Traumatic  injury. 

83.  Disease  without  accident  not  compensable. 

84.  Occupational   diseases  as   injuries  within  the  act — Michigan 

view. 

85.  Occupational  diseases  as  injuries  within  the  act — Massachu- 

setts view. 

86.  Heart  disease  as  an  accident  under  the  English  act. 

87.  Injury  aggravating  pre-existing  disease. 

88.  Internal  rupture  as  accident. 
88a.  Hernia  as  an  accident. 

89.  Typhoid  fever  from  drinking  water  furnished  by  employer,  as 

accident. 

90.  Ivy  poisoning  as  an  accident. 

91.  Nervous  shock  as  an  accident. 

92.  Assault  as  an  accident. 

93.  Assault  under  accident  insurance  policy. 

94.  Overwork  as  an  accident. 

95.  Accident  a  question  of  law  or  fact. 

96.  Death  resulting  from  accidental  injury. 

97.  Burden  of  proof  as  to  accident. 

98.  Accident  may  be  established  by  circumstantial  evidence. 

§  74.  Use  of  Words  "Accident"  and  "Injury." 

The  acts  of  thirteen  States  use  the  word  "injury"  alone 
and  do  not  use  the  words  "accidental"  or  "by  accident"  in 


62  MANUAL  OF  COMPENSATION  LAW 

connection  with  it.  These  States  are  California,  Colorado, 
Connecticut,  Iowa,  Massachusetts,  Michigan,  Montana,  New 
Hampshire,  Ohio,  Texas,  Washington,  West  Virginia  and 
Wyoming.  All  of  the  other  States  use  the  words  "injury 
by  accident"  or  "accidental  injuries"  or  words  which  indi- 
cate that  the  injury  must  be  of  an  accidental  nature  before 
it  is  covered  by  the  act.  The  word  "injury"  used  without 
limitation  generally  denotes  a  broader  coverage  than  where 
there  must  be  the  element  of  accident  accompanying  the  in- 
jury. For  instance,  an  injury  may  arise  both  "out  of"  and 
"in  the  course  of"  an  employment  and  still  not  be  of  an 
accidental  nature.  Thus  lead  poisoning,  an  occupational 
disease,  was  held  to  be  an  "injury"  within  the  Massachusetts 
Act.  Johnson's  case,  217  Mass.  388,  104  N.  E.  735,  4  N.  C. 
C.  A.  843.  But  this  would  not  be  true  under  the  New  Jersey 
Act,  which  refers  to  "injuries  by  accident";  Liondale  Bleach 
Dye  &  Paint  Works  v.  Riker,  85  N.  J.  L.  426,  89  Atl.  929 
4  N.  C.  C.  A.  713. 

The  words  "injury"  or  "injury  by  accident"  are  very 
closely  allied  to  the  phrase  "arising  out  of  and  in  the  course 
of  employment"  which  immediately  follows  them  in  the 
acts,  almost  without  exception,  Texas,  Wyoming,  West  Vir- 
ginia and  Wisconsin  being  the  exceptions,  and  even  in  those 
States  a  phrase  of  somewhat  similar  import  is  used.  Never- 
theless the  word  "accident"  and  "injury"  have  a  meaning 
under  workmen's  compensation  decisions  independent  of 
their  relation  to  other  words  and  phrases.  The  word  "in- 
jury" where  used  alone  includes  all  accidents,  but  the  word 
"accident"  does  not  include  all  injuries.  Therefore  what  is 
said  in  this  chapter  concerning  "accident"  is  applicable  also 
where  the  word  "injury"  alone  is  used. 

§  75.  Meaning  of  "Accident"  Generally. 

In  1  Corpus  Juris  390,  it  is  said :  "  'Accident'  in  its  legal 
signif cation  is  difficult  to  define;  it  is  not  a  technical  legal 
term  with  a  clearly  defined  meaning.  ...  In  its  most 
commonly  accepted  meaning  the  word  denotes  an  event  that 


ACCIDENT,   INJURY   AND  DISEASE  63 

takes  place  without  one's  foresight  or  expectation ;  an  event 
which  proceeds  from  an  unknown  cause,  or  is  an  unusual 
effect  of  a  known  cause,  and  therefore  is  not  expected; 
chance,  casualty,  contingency,  an  event  happening  without 
any  human  agency,  or,  if  happening  through  a  human 
agency,  an  event  which,  under  the  circumstances,  is  unusual 
and  unexpected  by  the  person  to  whom  it  happens ;  .  .  . 
something  unexpectedly  taking  place,  not  according  to  the 
usual  course  of  things ;  an  unusual  or  unexpected  result  at- 
tending the  operation  or  performance  of  a  usual  or  necessary 
act  or  event ;  something  happening  by  chance,  a  mishap.  It 
has  been  said  that  the  opposite  of  Occident'  is  'design,' 
'volition,'  'intent,'  and  that  in  many  of  the  definitions  the 
idea  of  design  is  excluded,  making  the  event  wholly  invol- 
untary." 

§  76.  Meaning  of  "Accident"  Within  the  Acts. 

The  word  "accident"  is  used  in  compensation  acts  in  its 
popular  sense.  Boody  v.  K.  &  C.  Mfg.  Co.,  77  N.  H.  208,  90 
Atl.  859,  L.  R.  A.  1916A  10,  Ann.  Gas.  1914D  1280 ;  Vennen 
v.  New  Dells  Lumber  Co.,  161  Wis.  370,  154  N.  W.  640,  L. 
R.  A.  1916A  273,  10  N.  C.  C.  A.  729. 

In  Bryant  v.  Fissell,  84  N.  J.  L.  72,  86  Atl.  458,  3  N.  C.  C. 
A.  585,  the  New  Jersey  Supreme  Court  said :  "Within  the 
purview  of  the  act,  an  'accident'  is  an  unlooked-for  mishap 
or  untoward  event  which  is  not  expected  or  designed." 

An  exhaustive  discussion  of  the  English  and  American 
cases,  construing  the  word  "accident",  is  found  in  L.  R.  A. 
1916A,  29  and  227. 

§  77.  Meaning  of  "Injury"  Within  Acts. 

As  stated  before,  when  the  act  uses  the  words  "personal 
injury"  and  does  not  use  the  word  "accident"  in  connection 
with  them,  the  meaning  of  the  word  "injury"  is  very  broad 
and  is  susceptible  of  the  construction  that  occupational  dis- 
eases, although  having  no  elements  of  accident  in  the  popu- 
ler  sense,  are  within  the  scope  of  the  act.  The  Massachu- 
setts Act  uses  the  words  "personal  injury"  in  this  way.  In 


64  MANUAL  OF  COMPENSATION  LAW 

Johnson's  case,  217  Mass.  388,  104  N.  E.  735,  4  N.  C.  C.  A. 
843,  the  court  in  holding  that  lead  poisoning  was  a  personal 
injury,  said:  "Under  the  act  'personal  injury'  is  not  limited 
to  injuries  caused  by  external  violence,  physical  force,  or  as 
a  result  of  the  accident  in  the  sense  in  which  that  word  is 
commonly  used  and  understood,  but  under  the  statute  is  to 
be  given  a  much  broader  and  more  liberal  meaning,  and 
includes  any  bodily  injury." 

§  78.  Injury  Accidental,  Though  Caused  By  Negligence. 

In  the  case  of  Frieda  Vennen,  Admrx.,  etc.,  v.  New  Dells 
Lumber  Co.,  161  Wis.  370,  154  N.  W.  640,  L.  R.  A.  1916A, 
273, 10  N.  C.  C.  A.  729,  the  court  said :  "The  contention  that 
an  injury  resulting  from  carelessness  or  negligence  is  not 
one  that  can  be  said  to  have  been  accidentally  sustained  in 
the  sense  of  the  compensation  act  is  not  well  founded.  As 
declared  in  Northwestern  Iron  Company  v.  Industrial  Com- 
mission, 154  Wis.  97,  post,  366,  142  N.  W.  271,  Ann.  Cas. 
1915B,  877 :  'In  giving  construction  to  such  statutes  words 
are  to  be  taken  and  construed  in  the  sense  in  which  they  are 
understood  in  common  language,  taking  into  consideration 
the  text  and  subject  matter  relative  to  which  they  are  em- 
ployed.' The  words  should  be  given,  as  intended  by  the  law- 
makers, their  popular  meaning.  Sadowski  v.  Thomas  Fur- 
nace Co.,  157  Wis.  443,  146  N.  W.  770.  'A  very  large  pro- 
portion of  those  events  which  are  universally  called  accidents 
happen  through  some  carelessness  of  the  party  injured 
which  contributes  to  produce  them.  .  .  .  Yet  such  in- 
juries having  been  unexpected,  and  not  caused  intentionally 
or  by  design,  are  always  called  accidents,  and  properly  so/ 
Accidents  without  negligence  are  rare  as  compared  to  acci- 
dents resulting  from  negligence.  Opinion  of  Paine,  J«,  in 
Schneider  v.  Provident  L.  Ins.  Co.,  24  Wis.  28,  1  Am.  Rep. 
157,  7  Am.  Neg  Cas.  174.  The  intention  of  the  legislature 
to  include  accidental  injuries  resulting  from  negligence  with- 
in the  language  of  the  compensation  act  is  so  manifest  that 
there  is  no  room  to  indulge  in  construction  of  the  language 
employed.  In  the  popular  sense  the  words  as  used  in  the 


ACCIDENT,   INJURY   AND  DISEASE  65 

compensation  act,  referring  to  a  personal  injury  accidentally 
sustained  by  an  employee  while  performing  services  growing 
out  of  and  incidental  to  his  employment,  include  all  acci- 
dental injuries,  whether  happening  through  negligence  or 

otherwise,  except  those  intentionally  self-inflicted 

The  term  'accidental'  as  used  in 'compensation  laws,  denotes 
something  unusual,  unexpected,  undesigned.  The  nature  of 
it  implies  that  there  was  an  external  act  or  occurrence  which 
caused  the  personal  injury  or  death  of  the  employee.  It 
contemplates  an  event  not  within  one's  foresight  and  expec- 
tation, resulting  in  a  mishap  causing  injury  to  the  employee. 
Such  an  occurrence  may  be  due  to  purely  accidental  causes, 
or  it  may  be  due  to  oversight  and  negligence." 

§  79.  Accident  Must  Occur  At  a  Definite  Time — Occupa- 
tional Diseases  Not  Accidents. 

In  Liondale  Bleach,  Dye  &  Paint  Works  v.  Hiker,  85  N.  J. 
L.  426,  89  Atl.  929,  4  N.  C.  C.  A.  713,  the  facts  were  as 
follows : 

Judgment  was  rendered  for  the  employee,  Riker,  in 
the  court  of  common  pleas  of  Morris  county,  under  the  work 
men's  compensation  act.  This  was  reversed  on  appeal,  and 
a  new  trial  granted  by  the  supreme  court.  Riker  had  work- 
ed in  the  bleachery  of  the  defendant  company  ten  days 
when  he  was  affected  with  a  rash,  pronounced  to  be  a  condi- 
tion of  eczema,  which  might  have  resulted  from  the  acids 
used  in  the  bleachery. 

In  rendering  the  decision,  Judge  Swayze,  who  delivered 
the  opinion,  reviewed  the  most  important  English  cases 
bearing  on  the  point  as  to  whether  this  state  of  facts  consti- 
tuted an  "accident"  under  the  statute,  and  concluded  as 
follows : 

"We  need  not,  of  course,  consider  cases  where  there  has 
been  an  accident  and  disease  has  followed.  We  have  consid- 
ered that  question  in  Newcomb  v.  Albertson,  89  Atl.  928. 

The  English  courts  seem  at  last  to  have  settled  that, 
where  no  specific  time  or  occasion  can  be  fixed  upon  as  the 


66  MANUAL  OF  COMPENSATION  LAW 

- 

time  when  the  alleged  accident  happened,  there  is  no  'injury 
by  accident'  within  the  meaning  of  the  act.  This  seems  a 
sensible  working  rule,  especially  in  view  of  the  provisions  of 
the  statute  requiring  notice  in  certain  cases  within  fourteen 
days  of  the  occurrence  of  the  injury — a  provision  which 
must  point  to  a  specific  tihie. 

We  need  not  consider  in  this  case  the  question  of  the  ef- 
fect of  a  finding  by  the  trial  judge  as  in  Brintons,  Limited, 
v.  Turvey  (an  English  case  in  which  a  wool  comber  was  in- 
fected by  anthrax).  Not  only  is  there  no  such  finding  of 
fact,  but  the  learned  trial  judge  rested  upon  a  construction 
of  the  statute  which  makes  the  word  'accident'  include 
'those  events  which  were  not  only  the  result  of  violence 
and  casualty,  but  also  those  resulting  conditions,  which  were 
attributable  to  and  caused  by  events  that  take  place  without, 
one's  foresight  or  expectation.'  This,  however,  is  to  make 
the  employer's  liability  turn  on  resulting  conditions  rather 
than  on  the  fact  of  injury  by  accident.  There  may,  indeed, 
be  compensation  awarded  for  resulting  conditions  where  you 
can  put  your  finger  on  the  accident  from  which  they  result ; 
but  the  ground  of  the  action  fixed  by  the  statute  is  the 
injury  by  accident,  not  the  results  of  an  indefinite  some- 
thing which  may  not  be  an  accident." 

§  80.  Meaning  of  Phrase  "Where  Injury  Is  Proximately 
Caused  By  Accident." 

In  Milwaukee  v.  Industrial  Commission,  160  Wis.  238, 
151  N.  W.  247,  the  court  said: 

"Proximate  cause  as  applied  to  negligence  law  has,  by  ] 
definition,  included  within  it  the  element  of  reasonable  an- 
ticipation. Such  element  is  a  characteristic  of  negligence, 
not  of  physical  causation.  As  long  as  it  was  necessary  to  a 
recovery  to  have  a  negligent  act  stand  as  the  cause  of  an 
injury,  it  did  no  harm  to  characterize  causation  in  part,  at 
least,  in  terms  of  negligence.  But  when,  as  under  the  com- 
pensation act,  no  act  of  negligence  is  required  in  order  to 
recover,  the  element  of  negligence,  namely,  reasonable  antic- 


ACCIDENT,   INJURY  AND  DISEASE  67 

ipation,  contained  in  the  term  'proximate  cause,'  must  be 
eliminated  therefrom,  and  the  phrase  'where  the  injury  is 
proximately  caused  by  accident,'  used  in  the  statute,  must 
be  held  to  mean  caused  in  a  physical  sense,  by  a  chain  of 
causation,  which,  both  as  to  time,  place  and  effect,  is  so 
closely  related  to  the  accident  that  the  injury  can  be  said  to 
be  proximately  caused  thereby.  To  incorporate  into  the 
phrase  'proximately  caused  by  accident'  all  the  conceptions 
of  proximate  cause  in  the  law  of  negligence  would  be  to  lug 
in  at  one  door  what  the  legislature  industriously  put  out  at 
another.  Proximate  cause,  under  the  law  of  negligence,  al- 
ways has  to  be  tracked  back  to  the  conduct  of  a  responsible 
human  agency ;  under  the  compensation  act  the  words  'Prox- 
imately caused  by  accident'  in  terms  relate  to  a  physical  fact 
only ;  namely,  an  accident.  Hence  if  the  injury  or  death  can 
be  traced  by  physical  causation  not  too  remote  in  time  or 
place  to  the  accident,  then  such  injury  or  death  was  proxi- 
mately caused  by  the  accident,  irrespective  of  any  element 
of  reasonable  anticipation." 

In  Great  Western  Power  Co.  v.  Pillsbury  171,  Cal.  79, 
151  Pac.  1136,  L.  R.  A.  1916A  281,  11  N.  C.  C.  A.  493,  the 
facts  were  as  follows:  On  July  1,  1914,  Ernest  Dreyer  was 
in  the  employ  of  the  company  named,  shaving  and  painting 
poles.  He  accidentally  caught  his  left  hand  between  a  pole 
and  another  piece  of  timber,  bruising  the  flesh  and  knocking 
a  small  piece  of  skin  from  the  back  of  the  hand.  He  con- 
tinued at  work  on  July  2  and  3,  using  the  other  hand  only. 
July  4  was  Saturday,  and  when  work  was  resumed  on  Mon- 
day he  was  unable  to  go  to  work  because  of  the  condition 
of  the  hand  and  the  severe  pain.  Blood  poisoning  appeared 
to  be  the  cause  of  the  condition,  and  the  time  when  the  pain 
and  suppuration  ensued  was  said  by  physicians  to  be  con- 
sistent with  the  period  of  development  of  a  common  germ 
causing  this  condition,  if  the  bacilli  had  entered  at  or  about 
the  time  of  the  accident.  An  award  of  $78.97  was  made, 
with  the  further  sum  of  $9.37  weekly,  beginning  September 
17,  1914,  and  continuing  until  the  termination  of  the  dis- 


68  MANUAL  OF  COMPENSATION  LAW 

ability.    This  award  was  affirmed,  Judge  Shaw  saying  in 
the  opinion: 

"We  perceive  no  merit  in  the  claim  that  this  disability 
was  not  proximately  caused  by  the  injury  and  abrasion  of 
the  skin.  Such  results  do  ensue  from  such  abrasions,  and 
they  are  brought  about  by  the  operation  of  what  are  ordi- 
narily considered  natural  forces ;  that  is,  by  th'e  intervention 
of  infectious  germs  usually,  or  at  least  frequently,  present  in 
the  air  or  on  the  surface  of  substances  with  which  any 
person  may  come  in  contact,  and  which  are  invisible  to  the 
eye  and  imperceptible  to  the  senses.  The  accident  was  the 
proximate  cause  of  the  injury,  within  the  definition  of  the 
term  'proximate  cause'  as  elaborately  stated  by  Justice 
Henshaw  in  Merrill  v.  Los  Angeles,  etc.,  Co.  (158  Cal.  503, 
111  Pac.  534)." 

In  Kill  v.  Industrial  Commission  of  Wisconsin  et  al.,  160 
Wis.  549,  152  N.  W.  148,  L.  R.  A.  1916A  14,  Edward  A.  Kill 
cut  his  left  wrist  on  April  16,  1915,  while  in  the  employ  of 
the  Plankington  Packing  Co.  as  a  tinsmith.  The  company 
sent  him  to  a  physician,  who  treated  him,  and  on  April  25  the 
wound  was  practically  healed.  On  the  evening  of  April  26 
the  injured  man  engaged  in  a  boxing  bout,  and  the  wrist 
afterwards  grew  worse  and  became  infected,  finally  result- 
ing in  the  loss  of  bones  of  the  hand  and  wrist,  incapacitating 
him  from  following  his  trade.  The  commission  found  that 
the  bacteria  had  been  walled  off  by  natural  processes  at  the 
time  he  engaged  in  the  boxing  match,  and  would  not  have 
done  further  harm,  and  eventually  would  have  been  expelled 
from  the  system  but  for  the  strenuous  exercise  which  stirred 
them  to  renewed  activity  and  at  the  same  time  lessened  his 
resisting  power.  The  commission  on  these  findings  dismiss- 
ed the  application  for  compensation,  and  the  circuit  court  of 
Dane  county  entered  judgment  confirming  this  order.  The 
supreme  court  affirmed  the  judgment,  holding  that  the  in- 
jury was  not  the  proximate  cause  of  the  ultimate  disability. 
Judge  Kerwin,  in  delivering  the  opinion,  said  in  part : 
•  "In  the  instant  case,  the  bout  which  was  subsequent  to 


ACCIDENT,   INJURY   AND  DISEASE  69 

the  original  injury,  intervened  and  was  the  efficient  cause 
and  had  its  origin  independent  of  the  original  cause  and  su- 
perseded it  and  thereby  became  the  proximate  cause  of  the 
injury.  (Cases  cited.) 

As  appears  from  the  statement  of  facts,  the  commission 
found  that  had  the  applicant  refrained  from  entering  the 
boxing  bout,  and  given  fiis  wrist  only  moderate  exercise  for  a 
few  days  more,  no  serious  result  would  have  followed.  This 
finding  is  supported  by  the  evidence,  and  establishes  the  fact 
that  the  boxing  bout  proximately  caused  the  injury  com- 
plained of,  within  the  meaning  of  the  workmen's  compensa- 
tion act;  therefore  the  decision  below  is  right  and  must  be 
affirmed." 

§  81.  Diseases  As  "Accidents"  or  "Injuries"  In  General. 

Occupational  diseases  are  not  covered  by  the  acts  unless 
the  act  so  states  or  unless  the  courts  have  construed  them 
to  be  included  in  the  phrase  "personal  injuries."  As  to  other 
diseases  they  are  usually  held  to  be  compensable  only  when 
there  is  a  direct  causal  connection  between  the  disease  and 
the  accident  or  injury,  as  the  case  may  be.  Boyne  v.  River- 
side Storage  &  Cartage  Co.,  181  Mich.  378,  148  N.  W.  412, 
5  N.  C.  C.  A.  837.  It  is  impossible  to  say  that  there  is  any 
general  rule  laid  down  by  the  cases  as  to  when  a  disease 
is  the  result  of  accident  or  injury.  The  facts  of  each  case 
must  govern.  Workmen's  compensation  acts  were  adopted 
in  order  to  relieve  the  workmen  from  the  loss  from  injuries 
which  were  a  natural  hazard  of  the  business  and  which  the 
business  ought  to  bear.  While  much  can  be  said  in  favor 
of  covering  occupational  diseases  by  statute  because  they 
are  a  natural  hazard  of  the  business,  that  reasoning  does  not 
apply  to  other  diseases  unless  they  are  clearly  caused  by  a 
definite  accident  or  injury. 

An  employee  had  a  neurotic  condition  which  might  have 
been  thrown  off.  It  was  held  that  this  did  not  deprive  him 
of  the  right  to  compensation  under  the  Massachusetts  Act. 
In  re  Hunnewell  220  Mass.  351,  107  N.  E.  934. 


70  MANUAL  OF  COMPENSATION  LAW 

Miliary  tuberculosis,  from  which  an  employee  died,  was 
held  to  be  approximately  caused  by  a  gas  explosion  while 
he  was  varnishing  a  drum  in  the  employer's  cellar,  under 
the  Wisconsin  Act.  Heileman  Brewing  Co.  v.  Schultz,  161 
Wis.  46,  152  N.  W.  446  . 

As  the  result  of  an  injury  received  in  the  course  of  his 
employment  an  employee  developed  paralysis,  paresis  and 
insanity.  He  was  held  to  be  entitled  to  compensation  under 
the  Mass.  Act,  although  the  diseases  had  been  pre-existent, 
but  up  to  the  time  of  the  injury  had  been  latent  and  did  not 
impair  his  ability  to  work.  Crowley  v.  City  of  Lowell,  223 
Mass.  288,  111  N.  E.  786. 

An  employee  was  working  on  a  crane  when  one  of  the 
timbers  broke.  He  jumped  into  the  river  to  save  himself 
and  the  exposure  which  resulted  caused  pulmonary  tubercu- 
losis. It  was  held  that  he  suffered  an  accidental  injury  in 
the  course  of  employment.  Rist  v.  Larkin  &  Sangster,  156 
N.  Y.  Supp.  875,  171  App.  Div.  71. 

An  employee  who  received  an  injury  which  culminated 
in  septicaemia,  died  as  a  result  of  it,  although  the  disease 
was  partly  caused  by  conditions  antecedent  to  the  injury. 
It  was  held  that  the  New  York  Act  applied.  Mazzarisi  v. 
Ward  &  Tulley,  156  N.  Y.  Supp.  964, 170  App.  Div.  868.  . 

Occupational  diseases  are  not  within  the  meaning  of  the 
Ohio  Act.  Industrial  Ace.  Comm.  v.  Brown,  110  N.  E.  744, 
92  Ohio  State  309,  L.  R.  A.  1916B  1277. 

An  attack  of  dizziness  produced  by  disease  was  held  to 
be  an  accident  within  the  Rhode  Island  Act.  Carrol  v. 
What  Cheer  Stables  Co.,  96  A.  208  (R.  I). 

Paralysis  was  held  to  be  due  to  an  injury  sustained  in 
the  employment  in  the  case  of  Frey  v.  Kerens-Donnewald 
Coal  Co.,  110  N.  E.  824,  271  111.  121. 

Where  blood  poisoning  resulted  from  an  abrasion  of  the 
skin,  the  court  said  in  the  case  of  Great  Western  Power  Co. 
v.  Pillsbury  et  al,  171  Cal.  69,  151  Pac.  1136,  L.  R.  A.  1916A 
281, 11  N.  C.  C.  A.  493 :  "We  perceive  no  merit  in  the  claim 
that  this  disability  was  not  proximately  caused  by  the  injury 


ACCIDENT,    INJURY   AND  DISEASE  71 

and  abrasion  of  the  skin.  Such  results  do  ensue  from  such 
abrasions,  and  they  are  brought  about  by  the  operation  of 
what  are  ordinarily  considered  natural  forces ;  that  is,  by  the 
intervention  of  infectious  germs  usually,  or  at  least  frequent- 
ly, present  in  the  air  or  on  the  surface  of  substances  with 
which  any  person  may  come  in  contact,  and  which  are  in- 
visible to  the  eye  and  imperceptible  to  the  senses." 

Blood  poisoning  has  been  held  compensable  in  the  follow- 
ing cases :  Fleet  v.  Johnson,  6  B.  W.  C.  C.  60  (Eng.) ;  Burn's 
Case,  218  Mass.  8,  105  N.  E.  601,  5  N.  C.  C.  A.  635;  Thomp- 
son v.  Ashington  Coal  Co.,  17  Times  L.  R.  345  (Eng.).  Of 
course,  the  accident  from  which  the  blood  poisoning  results 
must  be  shown  to  have  been  one  to  which  the  act  is  applic- 
able. The  following  diseases  following  traumatic  injury 
have  been  held  subjects  for  compensation:  Erysipelas  after 
an  injury  to  a  workman's  foot;  Mutter  v.  Thomson,  50  Scot. 
L.  R.  447,  6  B.  W.  C.  C.  424.  Epilepsy  after  a  fractured 
skull;  Butt  v.  Gellyceidrim  Colliery  Co.,  3  B.  W.  C.  C.  344. 
Appendicitis  and  peritonitis  after  a  severe  shaking ;  Enman 
v.  Dalziel,  50  Scot.  L.  R.  143,  6  B.  W.  C.  C.  900.  Abscess  fol- 
lowing a  fracture  and  resulting  in  ankylosis;  Newcomb  v. 
Albertson,  85  N.  J.  L.  435,  89  Atl.  928,  4  N.  C.  C.  A.  783. 
Pneumonia  caused  by  hurt  or  strain  of  the  back;  Boyne  v. 
Riverside  Storage  &  Cartage  Co.,  181  Mich.  378,  148  N.  W. 
412,  5  N.  C.  C.  A.  837.  Tetanus,  or  lockjaw,  from  stepping  on 
a  nail ;  Walker  v.  Mullens,  42  Ir.  Law  Times  168, 1  B.  W.  C.  C. 
211. 

For  exhaustive  note  on  recovery  of  compensation  for  in- 
capacity resulting  from  disease,  see  L.  R.  A.  1916A,  289-295. 

For  note  on  occupational  diseases  as  personal  injuries, 
see  8  N.  C.  C.  A.  1089-1093,  6  N.  C.  C.  A.  482-494,  4  N.  C.  C. 
A.  843-849. 

For  note  on  blood  poisoning  as  accident,  see  11  N.  C.  C. 
A.  493-511.  For  note  on  personal  injury  resulting  from 
poisonous  or  deleterious  matter  as  accident,  see  10  N.  C. 
C.  A.  257-277. 


72  MANUAL  OF  COMPENSATION  LAW 

§  82.  Traumatic  Injury. 

The  Kentucky  Act  provides  that  no  disease  shall  be  cov- 
ered by  it  unless  it  is  the  result  of  a  traumatic  injury  by 
accident. 

The  Standard  Dictionary  defines  "trauma"  as  "any  in- 
jury to  the  body  caused  by  violence;  also  the  violence  that 
causes  it."  Therefore  any  injury  to  the  body  caused  by  vio- 
lence would  be  a  "traumatic  injury;"  and  any  disease  fol- 
lowing such  injury  as  a  natural  and  direct  result  is  within 
the  purview  of  the  act.  In  "Accidents  in  Their  Medico-Legal 
Aspect,"  edited  by  Douglas  Knocker  (Eng.),  456,  in  an 
article  on  "Insanity  Caused  by  Injury,"  Theodore  B.  Hyslop, 
M.  D.,  says:  "Nowadays  it  is  recognized  that  after  injuries 
(trauma)  or  shocks  four  classes  of  conditions  may  arise, 
viz. :  1.  Actual  structural  or  organic  changes  in  the  central 
nervous  system.  2.  Traumatic  hysteria  which  is  the  conse- 
quence of  injury.  3.  Traumatic  neurasthenia.  4.  Traumatic 
psychoses,  or  morbid  mental  states."  In  the  same  work  on 
page  168,  Frederick  E.  Batten,  M.  D.,  says :  "Inflammation 
of  the  coverings  of  the  brain  (meningitis),  and  abscess  of 
the  brain,  or  even  epilepsy,  may  follow  an  injury  to  the 
brain.  It  is  far  more  common  for  an  injury  to  be  followed 
only  by  functional  disturbance  of  the  nervous  system  than 
by  actual  disease." 

§  83.  Disease  Without  Accident  Not  Compensable. 

Under  the  English  Act  in  Eke  v.  Hart-Dyke,  2  K.  B. 
677,  3  N.  C.  C.  A.  230,  it  was  claimed  that  a  laborer  died 
as  a  result  of  ptomaine  poisoning  from  sewer  gas,  breathed 
while  cleaning  certain  cesspools  for  his  employer.  It  was 
said  by  the  court  that  this  was  not  an  industrial  disease 
such  as  is  scheduled  under  the  English  Act,  and  for  which 
compensation  is  payable  by  statute  regardless  of  accident. 
Having  in  mind  the  above  facts,  the  court  said: 

"Was  there  'an  injury  by  accident  arising  out  of  and 
in  the  course  of  the  employment?'  In  my  opinion  there 
was  not.  This  court  and  the  House  of  Lords  have  been 


ACCIDENT,   INJURY  AND  DISEASE  73 

engaged  again  and  again  in  discussing  the  word  'accident', 
and,  so  far  as  I  am  aware,  neither  this  court  nor  the  House 
of  Lords  has  ever  .attempted  to  say  that  a  mere  disease- 
without  accident,  not  attributed  to  something  which  may 
properly  be  called  an  accident,  entitles  a  workman  to  com- 
pensation under  the  Act." 

§  84.  Occupational  Diseases  As  Injuries  Within  the  Act — 
Michigan  View. 

In  the  case  of  Adams  v.  Acme  White  Lead  &  Color 
Works,  182  Mich.  157,  148  N.  W.  485,  L.  R.  A.  1916A  282, 
283,  6  N.  C.  C.  A.  482,  the  court,  in  holding  that  disability 
due  to  lead  poisoning  was  not  within  the  coverage  of  the  act, 
said: 

"It  seems  to  be  established  under  the  English  cases  that 
lead  poisoning  is  not  an  accident.  It  is  an  occupational  dis- 
ease. It  seems  to  follow  from  this  that  unless  the  Michigan 
Workmen's  Compensation  Law  is  broad  enough  to  include 
and  cover  occupational  diseases,  the  applicant's  claim  in  this 
case  must  be  denied.  The  controlling  provision  of  the  act  on 
this  point  is  found  in  article  1  of  part  2,  and  is  as  follows : 
'If  an  employee  .  .  .  receives  a  personal  injury  arising 
out  of  and  in  the  course  of  his  employment,'  he  shall  be  paid 
compensation,  etc.  It  will  be  noted  that  the  above  language 
does  not  limit  the  right  of  compensation  to  such  persons  as 
receive  personal  injuries  by  accident.  The  language  in  this 
respect  is  broader  than  the  English  Act,  and  clearly  includes 
all  personal  injuries  arising  out  of  and  in  the  course  of  the 
employment,  whether  the  same  are  caused  'by  accident'  or 
otherwise.  .  .  .  Manifestly,  the  terms  'personal  in- 
jury' and  'personal  injuries,'  above  mentioned,  refer  to  com- 
mon law  conditions  and  liabilities,  and  do  not  refer  to  and 
include  occupational  diseases,  because  an  employee  had  no 
right  of  action  for  injury  or  death  due  to  occupational  dis- 
eases at  common  law,  but,  generally  speaking,  only  acci- 
dents, or  rather,  accidental  injuries,  gave  a  right  of  action. 
We  are  not  able  to  find  a  single  case  where  an  employee 


74  MANUAL  OF  COMPENSATION  LAW 

has  recovered  compensation  for  an  occupational  disease  at 
common  law.  Certainly  it  can  be  said  that  in  this  State  no 
employer  has  ever  been  held  liable  to  the  employee  for  in- 
jury from  an  occupational  disease,  but  only  for  injuries 
caused  by  negligence.  It  seems  to  us  tjhat  the  whole  scheme 
of  this  act  negatives  any  liability  of  the  employer  for  injury 
resulting  from  an  occupational  disease." 

§  85.  Occupational  Diseases  As  Injuries  Within  the  Act. — 
Massachusetts  View. 

In  Johnson  v.  London  Guaranty  &  Accident  Company, 
217  Mass.  338,  104  N.  E.  735,  4  N.  C.  C.  A.  843,  the  court 
in  holding  that  lead  poisoning  was  a  personal  injury  within 
the  act,  said: 

"Under  the  act,  'personal  injury'  is  not  limited  to  injur- 
ies caused  by  external  violence,  physical  force,  or  as  the  re- 
sult of  the  accident  in  the  sense  in  which  that  word  is  com- 
monly used  and  understood,  but  under  the  statute  is  to  be 
given  a  much  broader  and  more  liberal  meaning,  and  in- 
cludes any  bodily  injury.  .  .  . 

Aside  from  the  decisions  under  the  English  Act  which 
provides  for  compensation  for  'personal  injuries  by  acci- 
dent/ it  is  clear  that  'personal  injury'  under  our  act  in- 
cludes any  injury  or  disease  which  arises  out  of  and  in  the 
course  of  the  employment,  which  causes  incapacity  for 
work  and  thereby  impairs  the  ability  of  the  employee  for 
earning  wages.  The  case  of  Hood  &  Sons  v.  Maryland  Cas- 
ualty Co.,  206  Mass.  223,  92  N.  E.  329,  30  L.  R.  A.  (N.  S.), 
1192,  138  Am.  St.  Rep.  379,  is  decisive  of  the  case  at  bar. 
In  that  case  it  was  held  that  for  a  person  to  become  infected 
with  glanders  was  to  suffer  a  bodily  injury  by  accident." 

§  86.  Heart  Disease  As  An  Accident  Under  the  English  Act. 

The  English  Act  refers  to  "injuries  by  accident."  In 
the  case  of  McArdle  v.  Swansea  Harbour  Trust,  8  B.  W. 
C.  C.  489, 11  N.  C.  C.  A.  175,  an  employee  was  working  reg- 
ularly at  work  rather  simple  in  its  nature,  but  not  easily 


ACCIDENT,    INJURY   AND   DISEASE  75 

performed.    It  involved  pulling  boxes  weighing  on  the  aver- 
age 200  pounds  all  day  long.    The  court  said: 

"While  the  man  was  in  the  act  of  pulling  a  box  forward 
in  the  manner  which  I  have  described,  he  suddenly  fell 
down  and  died  practically  instantaneously.  I  never  saw  a 
case  in  which  death  was  so  clearly  arising  out  of  the  em- 
ployment in  the  sense  of  being  physically  connected  with  it, 
because  he  died  in  the  very  act  of  doing  the  work  which  he 
was  employed  to  do,  but,  of  course,  that  does  not  conclude 
the  matter.  It  was  found,  on  the  post-mortem,  on  undis- 
puted evidence,  that  the  death  was  due  to  rupture  of  an 
aneurism.  It  also  appears  that  this  is  a  disease  which 
does  not  generally,  and  in  this  particular  case  did  not,  arise 
suddenly ;  it  was  probably  of  long  standing.  The  artery  was 
in  a  bad  condition,  but,  as  always  happens,  the  moment  came 
when  the  walls  of  the  artery  broke,  and  the  blood  came 
out,  and  death  followed  almost  immediately.  Now  what  is 
the  necessary  result  of  those  facts,  all  of  which  I  think  are 
beyond  contest  and  beyond  dispute?  In  the  first  place,  it 
seems  to  me  that,  within  the  definition  given  by  the  House 
of  Lords  on  more  than  one  occasion,  of  an  accident,  this  was 
clearly  an  accident,  and  I  cannot  bring  myself  to  doubt 
that  it  was  an  accident  within  the  meaning  of  Lord  Mac- 
naghten's  oft  quoted  and  oft  approved  judgment  in  Fenton 
v.  Thorley  &  Co.,  Ltd.  <1903),  A.  C.  443;  5  W.  C.  C.  1,  nor  do 
I  think  there  is  any  doubt  that  it  was  also  an  accident  with- 
in the  meaning  of  the  judgment  of  the  majority  of  the  court 
in  Clover,  Clayton  &  Co.,  Ltd.,  v.  Hughes  (1910),  A.  C. 
242 ;  3  B.  W.  C.  C.  275.  If  it  was  an  accident  it  is  said  that 
it  still  may  not  be  an  accident  arising  out  of  the  employ- 
ment. It  may  be  that  he  was  not  doing  anything  at  the 
time,  or  shortly  before  the  time  of  death,  which  in  any  way 
could  contribute  to  it  or  accelerate  the  fatal  end.  The  artery 
must  have  been  broken,  the  aneurism  must  have  been  rup- 
tured, at  some  time,  and  in  the  natural  course  of  events  it 
would  have  been  long  distant.  But  we  have,  as  it  seems  to 


76  MANUAL  OF  COMPENSATION  LAW 

me,  to  deal  with  the  rupture  of  the  aneurism  at  the  partic- 
ular time  at  which  it  was  ruptured." 

Heart  failure  was  held  compensable  in  the  following 
cases:  In  re  Fisher,  220  Mass.  581,  11  N.  C.  C.  A.  (note) 
177;  O'Hare  v.  Employers'  Liability  Assurance  Corpn.,  2 
Mass.  Workm.  Comp.  Gas.  369,  11  N.  C.  C.  A.  178;  In  re 
Brightman,  220  Mass.  17,  8  N.  C.  C.  A.  102,  Winter  v.  At- 
kinson, Frizelle  Co.,  37  N.  J.  L.  J.  195, 11  N.  C.  C.  A.  180;  In 
re  Madden,  222  Mass.  487,  111  N.  E.  379.  But  compensation 
was  denied  in  Waldman  v.  Herman,  1  Cal.  Ind.  Ace.  Comm. 
82,  11  N.  C.  C.  A.  178 ;  Farrish  v.  Nugent,  1  Cal.  Ind.  Ace. 
Comm.  98,  11  N.  C.  C.  A.  179;  In  re  Stith,  Ohio  Ind.  Comm. 
No.  24574,  11  N.  C.  C.  A.  180. 

For  note  on  death  from  heart  disease  under  Workmen's 
Compensation  Acts,  see  11  N.  C.  C.  A.  175-186,  8  N.  C.  C.  A. 
102-106,  L.  R.  A.  1916A  33,  34. 

§  87.  Injury  Aggravating  Pre-Existing  Disease. 

In  Walters  v.  Brune,  2  Cal.  Ind.  Ace.  Comm.,  Dec.  (1915), 
249,  10  N.  C.  C.  A.  (note)  759,  it  was  said :  "The  employer 
takes  his  employee  subject  to  the  physical  condition  he  is 
in  at  the  time  he  enters  employment..  Compensation  is  for 
the  benefit  of  the  subnormal  except  in  exaggerated  cases 
where,  by  reason  of  constitutional  diseases  or  disorders, 
such  as  tuberculosis  or  syphilis,  an  injured  workman  suffers 
for  a  period  far  beyond  what  would  be  the  case  if  he  were 
in  a  condition  of  ordinary  physical  health."  But  when  an 
employee  receives  an  injury  which  would  cause  only  a  short 
disability,  ordinarily,  yet  causes  continuing  disability  by 
reason  of  a  pre-existing  disease,  he  is  not  entitled  to  com- 
pensation beyond  that  which  would  have  been  due  to  a 
normal  employee  for  the  same  injury.  Johnson  v.  Lowe,  2 
Cal.  Ind.  Ace.  Comm.  Dec.  568. 

There  must  be  an  unbroken  chain  of  causation,  between 
the  accident  or  injury  complained  of  and  the  disability,  and 
unless  the  accident  or  injury  was  the  proximate  contributing 
cause  of  the  disability  compensation  cannot  be  allowed.  In 
re  Madden,  220  Mass.  487,  111  N.  E.  379. 


ACCIDENT,   INJURY  AND  DISEASE  77 

The  English  rule  is  well  stated  in  the  case  of  Clover  v. 
Hughes,  3  B.  W.  C.  C.  275,  when  the  court  said  that  an 
employee  is  entitled  to  compensation,  "if  it  appears  that 
the  employment  is  one  of  the  contributing  causes;  without 
which  the  accident  which  actually  happened  would  not  have 
happened,  and  if  the  accident  is  one  of  the  contributing 
causes,  without  which  the  injury  which  actually  followed 
would  not  have  followed." 

For  note  on  injury  accelerating  death  from  pre-existing 
disease  or  aggravating  the  condition  of  it,  see  10  N.  C.  C.  A. 
(note)  756-777. 

The  questions  above  discussed  were  treated  in  Beare  v. 
Garrod,  8  B.  W.  C.  C.  474,  10  N.  C.  C.  A.  756  (Eng.),  Lord 
Cozens-Hardy  said: 

"This  is  an  appeal  from  a  decision  of  his  Honour,  Judge 
Woodfall,  who  has  held  that  the  dependents  of  the  deceased 
workman  are  entitled  to  compensation  in  respect  of  an 
admitted  accident.  The  accident  was  caused  by  a  runaway 
horse,  the  man  being  thrown  off  a  van  and  seriously  injured. 
He  was  taken  to  St.  George's  Hospital  first  and  afterward 
to  another  hospital.  The  accident  affected  him  mentally 
for  some  considerable  time.  He  was  sent  away  on  October 
14,  from  the  hospital  to  the  Croydon  Infirmary,  but  instead 
of  going  to  the  infirmary  he  arrived  unexpectedly  at  his 
house,  where  his  wife  was.  He  arrived  home  on  October 
14  and  two  days  afterward,  on  October  16,  he  was  found 
to  be  suffering  from  acute  and  active  tuberculosis,  from 
which  he  died  on  December  2.  .  .  .  It  is  not  for  me  to 
say  what  conclusion  I  should  have  arrived  at,  having  regard 
to  this  evidence,  but  I  feel  that  I  can  not  say  that  there 
was  not  evidence  upon  which  the  learned  County  Court 
Judge  might  have  come  to  the  conclusion  which  he  came 
to,  namely,  that  the  death  resulted  from  the  accident.  The 
word  'resulted/  of  course,  includes  'accelerated  by,'  and 
I  do  not  mean  'result'  in  any  other  sense  than  that  the 
death  was  accelerated  by  the  accident.  .  .  .  That  acci- 
dent, of  course,  was  a  very  serious  one;  it  affected  his 


78  MANUAL  OF  COMPENSATION  LAW 

brain,  it  affected  his  vitality,  and  the  medical  evidence 
seems  to  me  abundant  to  show  that,  as  a  medical  problem, 
such  lowering  of  vitality  might  cause  the  acceleration  of 
death ;  that  it  might  light  up  the  tuberculosis  and  ultimately 
cause  his  death.  I  can  not  bring  myself  to  say  that  there 
was  not  sufficient  to  justify  the  learned  County  Court  Judge 
in  coming  to  the  conclusion  that  he  did  come  to.  I  will 
read  the  passage  in  his  judgment,  which  is  this:  'The 
evidence  has,  in  my  opinion,  established  that  the  man  be- 
fore the  accident  had  a  fibrous  condition  of  the  lungs,  which 
was  quiescent,  and  did  not  prevent  him  from  working  and 
earning  his  living.  That  such  a  condition  is  not  necessarily 
fatal  nor  incapacitating  unless  by  reason  of  illness  or  other 
untoward  cause,  the  power  of  resistance  is  lessened,  in 
which  case  acute  inflammatory  symptoms  of  tuberculosis- 
might  be  set  up.  That  the  injuries  sustained,  especially 
brain  injury,  might  bring  about  this  aggravation  of  the 
latent  mischief,  and  an  onset  of  acute  and  rapid  tuberculosis. 
There  is  no  evidence  that  he  was  ever  discharged  as  cured 
of  the  cerebral  injury,  and,  apart  from  the  evidence  of  his 
statement  to  his  wife,  the  evidence  shows  an  unbroken  chain 
of  causation — injury  incurred  which  might  induce  the  cause 
of  death — no  evidence  of  other  cause — and  in  a  short  time 
death  from  the  potential  cause/  Then  he  says :  'Rejecting 
the  evidence  of  the  alleged  statement,  I  find  the  applicant 
has  proved  her  case,  and  I  make  the  award.'  In  my  opinion, 
it  is  impossible  to  say  there  was  no  evidence  which  justified 
the  learned  County  Court  Judge  in  finding  as  he  did,  and 
there  being  no  trace  of  a  novus  actus  interveniens,  and 
there  being  evidence  that  the  accident  did  take  place  which 
would  suffice  to  set  up  the  condition,  it  is  impossible  for  us  to 
interfere  or  to  allow  this  appeal  to  succeed." 

§  88.  Internal  Rupture  As  Accident. 

This  point  is  illustrated  by  the  case  of  Voorhees  v.  Smith, 
Schoonmaker  Co.,  86  N.  J.  Law  500,  92  Atl.  280,  7  N.  C.  C. 
A.  646.  The  court  said: 


ACCIDENT,    INJURY   AND  DISEASE  79 

'The  principal  question  raised  is  whether  the  court  of 
common  pleas  was  justified  in  finding  that  the  death  of  Ira 
Voorhees,  the  employee,  resulted  from  an  accident  arising 
out  of  and  in  the  course  of  his  employment.  The  deceased, 
a  man  of  middle  age  or  over,  worked  in  a  woodworking 
shop  of  prosecutor,  and  at  the  time  of  the  seizure  just  pre- 
ceding his  death  was  working  at  a  task  of  furrowing  16 
posts,  each  six  inches  square  and  weighing  about  100  pounds 
apiece.  To  do  this  he  had  to  get  each  post  up  on  the  table 
of  the  furrowing  machine,  and  push  it  forward  against  the 
knives  by  body  pressure,  which  was  exerted  by  pushing 
his  abdomen  forcibly  against  the  end  of  the  post.  Each 
post  had  to  be  run  through  twice.  After  Voorhees  had 
finished  13  of  the  posts  he  sat  down,  evidently  in  great  pain, 
and  shortly  afterward  sent  for  a  doctor,  who  had  him  taken 
home,  where  he  died  3  days  later.  He  vomited  blood  and 
passed  bloody  stools,  and  the  doctor  pronounced  the  trouble 
internal  hemorrhage.  *  After  death  the  undertaker,  as  he 
testified,  found  the  body  in  such  condition  that  he  had  it 
buried  a  day  earlier  than  originally  intended.  It  was  in 
evidence  that  there  was  a  large  bruise  on  the  abdomen 
where  the  pressure  had  been  exerted  on  the  ends  of  the 
posts. 

The  effort  of  the  defense  was  to  show  that  death  was 
produced  by  a  rupture  resulting  from  cancer.  The  family 
refused  to  consent  to  an  autopsy,  but  that  was  their  right. 
It  must  be  conceded  that  much  of  the  evidence  points  to 
cancer  and  an  internal  rupture  of  some  kind.  But  it  was 
quite  plain,  and  the  trial  court  was  fully  justified  in  finding, 
that  the  rupture  occurred  while  the  deceased  was  in  the  very 
act  of  doing  some  unusually  heavy  work.  So  that,  even 
if  deceased  was  suffering  from  internal  cancer,  it  was  quite 
within  the  province  of  the  court  to  find  that  the  proximate 
cause  of  death  was  the  unusual  and  forcible  pressure  on 
:  parts  weakened  by  disease,  which  but  for  the  unusual  strain 
;  would  have  held  out  for  a  considerable  period." 


80  MANUAL  OF  COMPENSATION  LAW 

§  88.  A  Hernia  As  An  Accident. 

The  general  rule  is  that  where  a  new  hernia  results  di- 
rectly from  a  strain  or  an  over-exertion  of  some  kind  while 
the  workman  is  performing  the  duties  of  his  employment, 
it  is  a  personal  injury  by  accident  within  the  meaning  of 
Workmen's  Compensation  Acts.  This  is  true  even  where 
the  act  does  not  specifically  so  provide.  Zappala  v.  Indus- 
trial Commission  of  the  State  of  Washington,  82  Wash. 
314,  144  Pac.  54,  L.  R.  A.  1916A,  295;  Poccardi,  etc.,  v. 
Public  Service  Commission  (W.  Va.),  84  S.  E.  242,  L.  R.  A. 
1916A,  299 ;  Voorhees  v.  Smith-Schoonmaker  Co.,  86  N.  J. 
L.  500,  82  Atl.  280,  7  N.  C.  C.  A.  646,  Andreini  v.  Cudahy 
Packing  Co.  et  al.,  1  Cal.  Ind.  Ace.  Comm.  Dec.  8,  6  N.  C.  C. 
A.  390,  and  may  be  true,  although  there  was  a  previously 
existing  structural  weakness  at  the  point  where  the  injury 
was  received,  Bell  v.  Haynes-Ionia  Co.  (Mich.),  158  N.  W. 
179;  but  an  old  well  developed  hernia  which  is  likely  to 
cause  trouble  at  any  time  regardless  of  any  special  strain  or 
accident  is  not  within  the  scope  of  the  acts.  Koras  v. 
Northern  Electric  R.  R.  Co.,  2  Cal.  Ind.  Ace.  Comm.  Dec. 
196,  U.  S.  F.  &  G.  Co.  v.  Rawling,  1  Cal.  Ind.  Ace.  Comm. 
Dec.  64.  For  further  cases  sustaining  this  rule  and  notes 
discussing  the  subject  generally,  see  6  N.  C.  C.  A.  (note) 
390-405,  L.  R.  A.  1916A  (note)  303. 

In  Poccardi  v.  Pub.  Serv.  Comm.  (supra),  West  Va.,  in 
a  headnote  prepared  by  the  court  it  is  said:  "A  rupture 
caused  by  strain  while  at  work  is  an  accident  or  untoward 
event  arising  in  the  course  of  employment,  and  compen- 
sable  under  the  Workmen's  Compensation  Act." 

In  Knocker's  Accidents  in  their  Medico-Legal  Aspect, 
page  694,  it  is  said,  "a  new  hernia  rarely  if  ever  occurs 
from  an  accident,"  again  on  page  702,  "all  laborious  occupa- 
tions tend  to  gradually  produce  hernias.  The  heavy  work 
long  continued,  especially  with  the  patient  holding  the 
breath,  raises  the  internal  abdominal  pressure  which  af- 
fects some  weak  spot  in  the  abdominal  wall  and  slowly  and 
persistently  stretches  it,  so  that  a  hernia  forms  here  by 


ACCIDENT,   INJURY  AND  DISEASE  81 

degrees  until  it  is  large  enough  to  attract  the  attention  of 
the  patient." 

In  Coley's  Monograph  on  Hernia  in  Keen's  Surgery, 
Vol.  4,  p.  27,  it  is  said:  "Kaufman  of  Zurich  has  made  a 
careful  study  of  this  question  based  upon  medical  juris- 
prudence. These  are  his  conclusions:  A  hernia,  in  order 
to  be  entitled  to  any  indemnity,  must  appear  suddenly; 
must  be  accompanied  by  pain,  and  must  immediately  fol- 
low an  accident ;  there  must  be  proof  that  the  hernia  did  not 
exist  prior  to  the  accident." 

Provisions  almost  exactly  similar  to  this  statement  have 
been  made  in  the  laws  of  Colorado,  Montana  and  West  Vir- 
ginia. Kentucky's  provision  is  similar  except  that  jthe 
provision  concerning  pain  was  left  out.  The  Washington 
Board  has  adopted  rules  similar  to  the  above,  as  essentials 
to  recovery  for  hernia  and  these  rules  have  been  upheld  in 
Zappala  v.  Industrial  Comm.  82  Wash.  314,  144  Pac.  54, 
L.  R.  A.  1916A,  295. 

For  further  discussion  of  hernia  under  Workmen's  Com- 
pensation Acts  see  L.  R.  A.  1916A  303,  6  N.  C.  C.  A.  390- 
405. 

§  89.  Typhoid  Fever  From  Drinking  Water  Furnished  By 
Employer,  As  Accident. 

In  Vennen  v.  New  Dells  Lumber  Co.  161  Wis.  370,  154 
N.  W.  640,  L.  R.  A.  1916A,  273,  10  N.  C.  C.  A.  729,  the  facts 
were  that  Frieda  Vennen  brought  action  as  administratrix 
for  the  death  of  her  husband,  Gerhard  Vennen,  who  had 
been  an  employee  of  the  company  named.  The  company 
maintained  toilets  for  the  use  of  its  employees,  the  sewage 
from  which  was  discharged  into  the  river  near  its  plant. 
It  was  alleged  that  the  company  took  water  from  the  river, 
in  such  location  that  it  was  contaminated  by  the  sewage, 
as  well  as  from  the  city  waterworks,  for  use  in  the  plant; 
that  through  improper  connections  the  two  supplies  became 
commingled;  that  the  company  caused  its  employees  to 
drink  of  this  water;  and  that  as  a  result  Vennen  became 
sick  with  typhoid  fever  and  died.  The  company's  answer 


82  MANUAL  OF  COMPENSATION  LAW 

set  forth  facts  which,  with  the  allegations  of  the  declara- 
tion, it  claimed  brought  the  plaintiff's  remedy  under  the 
workmen's  compensation  act.  The  plaintiff  demurred  to 
the  answer,  the  demurrer  was  overruled,  and  the  plaintiff 
appealed.  The  court  affirmed  the  decision  below,  thus  hold- 
ing that  the  facts  as  alleged  brought  the  matter  within  the 
scope  of  the  compensation  act,  and  that  the  proceeding  must 
be  as  provided  by  it.  Judge  Siebecker,  who  delivered  the 
opinion,  said  in  part: 

"The  facts  alleged  show  that  the  parties  to  the  action 
were  subject  to  the  compensation  act.  The  inquiry  then  is: 
Was  Vennen's  death  proximately  caused  by  accident 
while  he  was  'performing  services  growing  out  of  and  in- 
cidental to  his  employment'?  The  inference  from  the  al- 
leged facts  is  reasonably  clear  that  Vennen  at  the  time  of 
the  alleged  injury  resulting  in  his  death  was  'performing 
services  growing  out  of  and  incidental  to  his  employment/ 

The  contention  that  an  injury  resulting  from  careless- 
ness or  negligence  is  not  one  that  can  be  said  to  have  been 
accidentally  sustained  in  the  sense  of  the  compensation 
act  is  not  well  founded. 

The  fact  that  the  deceased  became  afflicted  with  typhoid 
fever  while  in  defendant's  service  would  not  in  the  sense 
of  the  statute  constitute  a  charge  that  he  sustained  an  ac- 
cidental injury,  but  the  allegations  go  further,  and  state 
that  this  typhoid  affliction  is  attributable  to  the  undesigned 
and  unexpected  occurrence  of  the  presence  of  bacteria  in 
the  drinking  water  furnished  him  by  the  defendant,  as  an 
incident  to  his  employment.  These  facts  and  circumstances 
clearly  charge  that  Vennen's  sickness  was  the  result  of  an 
unintended  and  unexpected  mishap  incident  to  his  employ- 
ment. These  allegations  fulfill  the  requirements  of  the 
statute  that  the  drinking  of  the  polluted  water  by  the  de- 
ceased was  an  accidental  occurrence,  while  he  was  'per- 
forming services  growing  out  of  and  incidental  to  his  em- 
ployment.' It  is  alleged  that  the  consequences  of  this  al- 
leged accident  resulted  in  afflicting  Vennen  with  typhoid 


ACCIDENT,   INJURY  AND  DISEASE  83 

disease,  which  caused  his  death.  Diseases  caused  by  acci- 
dent to  employees  while  'performing  services  growing  out 
of  and  incidental  to  his  employment'  are  injuries  within  the 
contemplation  of  the  workmen's  compensation  act.  This 
was  recognized  in  the  case  of  Heileman  Brewing  Co.  v.  In- 
dustrial Commission,  152  N.  W.  446  [evidence  that  inhal- 
ation of  gas  fumes  following  explosion  excited  latent  in- 
fection, or  lowered  vitality  so  as  to  increase  liability  to  in- 
fection, death  resulting  from  miliary  tuberculosis],  and 
Voelz  v.  Industrial  Commission,  152  N.  W.  830.  [Here  Eng- 
lish cases  are  examined.]  We  are  of  the  opinion  that  the 
decision  of  the  trial  court  holding  that  the  facts  pleaded 
show  that  Vennen's  death  was  caused  by  accident  while 
performing  service  growing  out  of  and  incidental  to  his  em- 
ployment is  correct,  and  that  the  demurrer  was  properly 
overruled." 

For  note  on  illness  caused  by  beverage  furnished  by 
employer  see  10  N.  C.  C.  A.  729-742. 

§  90.  Ivy  Poisoning  As  An  Accident. 

In  Plass  v.  Central  New  Eng.  R.  Co.  169  App.  Div.  826, 
155  N.  Y.  Supp.  854,  Jane  Plass  proceeded  under  the  work- 
men's compensation  law  for  compensation  for  the  death  of 
her  husband,  a  section  laborer  of  the  company  named.  He 
came  in  contact  with  poison  ivy  while  mowing  the  right  of 
way  of  the  railroad,  and  the  poisoning  resulted  successively 
in  blood  poisoning,  bronchitis  and  congestion  of  the  lungs, 
from  which  he  died.  The  company  appealed  from  an  award 
made  by  the  compensation  commission,  but  it  was  affirmed, 
Judge  Kellogg,  speaking  for  the  court,  saying : 

"It  has  been  held  that  contact  with  poison  ivy  which  re- 
sults in  death  is  an  accidental  death  within  a  policy  cover- 
ing death  by  external,  violent,  and  accidental  means.  (Rail- 
way Association  v.  Dent,  213  Fed.  981.)  The  injury  can 
not  be  called  an  occupational  disease.  Plass  actually,  in- 
advertently, came  in  physical  contact  with  poison  ivy.  The 
poison  to  his  system  caused  thereby  resulted  in  his  sickness, 
and  reduced  his  power  of  resistance,  and  made  him  sus- 


84  MANUAL  OF  COMPENSATION  LAW 

ceptible  to  bronchitis.  The  attending  physician  treated 
him  for  ivy  poisoning,  and  then  found  he  had  developed 
more  or  less  infection,  the  blebs  breaking  open,  and  in  that 
way  he  became  infected,  and  while  in  bed  contracted  bron- 
chitis, which  afterwards  developed  oadema  of  the  lungs, 
and  he  died  quite  suddenly. 

The  commission  has  found  that  the  ivy  and  septic 
poisoning  was  the  remote  cause  of  his  death,  and  that  his 
poisoned  condition  predisposed  him  to  the  acute  congestion 
of  the  lungs  of  which  he  died.  We  are  not  at  liberty  to  re- 
view the  findings  of  commission  upon  a  question  of  fact. 
There  is  certainly  some  evidence  to  warrant  the  finding." 

§  91.  Nervous  Shock  As  An  Accident. 

Nervous  conditions  brought  on  by  an  accident  or,a  catas- 
trophe are  usually  held  both  in  England  and  the  United 
States,  to  be  covered  by  the  acts  so  that  disability  resulting 
therefrom  is  compensable. 

In  Yates  v.  South  Kirkby,  F.  &  H.  Collieries  Ltd.  2  K. 
B.  538,  3  N.  C.  C.  A.  225,  79  L.  J.  K.  B.  809,  Cozens-Hardy 
M.  R.  said:  "I  think  the  discisions  of  this  court,  including 
the  recent  decisions  in  the  case  of  Eaves  v.  Blaenclydach 
Colliery  Co.  Ltd.  2  K.  B.  73,  do  show  that  when  a  man  in  the 
course  of  his  employment  sustains  a  nervous  shock  produc- 
ing physiological  injury,  not  a  mere  emotional  impulse, 
he  meets  with  an  accident  arising  out  of  and 
in  the  course  of  his  employment.  It  is  something  unex- 
pected, no  doubt,  in  this  sense,  that  I  do  not  suppose  the 
applicant  thought  for  a  moment,  when  he  was  doing  what 
was  plainly  his  duty  in  going  to  the  rescue  of  his  fellow 
workman,  it  would  have  this  physiological  effect  on  his 
system,  but  it  had  that  effect."  In  the  same  case,  Farewell 
L.  J.  said:  "In  my  opinion,  indeed,  it  can  be  said  that 
nervous  shock  due  to  accident  is  as  much  personal  injury 
due  to  accident,  as  a  broken  leg." 

Hysterical  blindness  and  neurosis  were  held  to  be  com- 
pensable injuries  in  re  Hunnewell,  220  Mass.  351,  107  N. 


ACCIDENT,   INJURY  AND  DISEASE  85 

E.  934.  See  also  Madden  v.  Whitham  38  N.  J.  L.  J.  113,  10 
N.  C.  C.  A.  1045  (note). 

For  note  on  nervous  shock  or  mental  condition  as  an 
injury  by  accident  arising  out  of  and  in  the  course  of  em- 
ployment, citing  decisions  of  the  Industrial  Boards  of  Cali- 
fornia, Ohio  and  Mass.,  see  10  N.  C.  C.  A.  1041-1051. 

In  Visser  v.  Michigan  Cabnite  Co.,  Mich.  Indus.  Ace. 
Bd.  Bui.  No.  3,  p.  24,  the  common  law  rule  was  followed  and 
it  was  held  that  mere  fright  without  actual  physical  in- 
jury was  not  sufficient  to  sustain  an  award. 

§  92.  Assault  As  An  Accident. 

An  assault  upon  the  person  of  an  employee  received 
when  in  the  course  of  his  employment  and  arising  out  of 
it  may  be  an  accident  or  injury  which  is  compensable.  But 
this  is  not  true  if  the  workman  himself  deliberately  as- 
saulted a  fellow  workman  as  he  thereby  removes  all  ques- 
tion of  accident.  Shaw  v.  Wegan  Coal  &  I.  Co.  (Eng.) 
3  B.  W.  C.  C.  81,  L.  R.  A.  1916A  310  (note) .  However  in- 
juries to  an  employee  making  the  assault  are  within  the 
Massachusetts .  act,  which  does  not  use  the  word  accident, 
when  received  while  performing  a  duty  in  forcibly  remov- 
ing a  tresspasser.  In  re  Reithel,  222  Mass.  163,  109  N.  E. 
951,  L.  R.  A.  1916A  304,  11  N.  C.  C.  A.  235.  Generally  when 
an  employee  acting  in  the  course  of  and  in  the  scope  of  his 
employment,  and  when  not  himself  the  aggressor,  suffers 
injuries  from  an  assault  by  a  third  person.  [Western  Metal 
Supply  Co.  v.  Pillsbury  (Cal.),  156  Pac.  491]  or  a  fellow  em- 
ployee [Western  Indemnity  Co.  v.  Pillsbury  170  Cal.  686, 
156  Pac.  398 ;  Hartnett  v.  Steen  -169  App.  Div.  905,  153  N. 
Y.  Supp.  1119,  affirmed  216  N.  Y.  101,  110  N.  E.  170],  the 
injuries  are  said  to  be  accidental  but  they  must  arise  "out 
of"  as  well  as  "in  the  course"  the  employment. 

In  Trim  Joint  Dist.  School  v.  Killey  W.  C.  &  Ins.  Rep. 
359,  136  L.  T.  J.  605,  6  N.  C.  C.  A.  1010  (note),  "it  was  held 
that  'accident'  in  the  English  Workmen's  Compensation 
Act  of  1906,  includes  any  injury  not  expected  or  designed 
by  the  injured  workman  himself,  and  therefore  a  premedi- 


86  MANUAL  OF  COMPENSATION  LAW 

tated  injury  inflicted  on  a  workman  in  the  course  of  his  em- 
ployment in  pursuance  of  a  criminal  conspiracy  against  him 
may  be  an  'accident'  within  the  meaning  of  the  act."  For 
complete  exposition  of  the  English  and  American  cases 
on  the  question  of  assault,  see  6  N.  C.  C.  A.  (note)  1010- 
1022,  L.  R.  A.  1916A  (note) ,  309,  11  N.  C.  C.  A.  235-254 
(note). 

§  93.  Assault  Under  Accident  Insurance  Policy. 

An  assault  has  been  held  to  be  an  accident  under  an  in- 
surance policy  in  Kentucky.  In  American  Accident  Com- 
pany of  Louisville  v.  Carson,  99  Ky.  445,  36  S.  W.  169, 
Thomas'  Kentucky  Words  and  Phrases  12,  the  court  said: 
"While  our  preconceived  notions  of  the  term  'accident' 
would  hardly  lead  us  to  speak  of  the  intentional  killing  of 
a  person  as  an  accidental  killing,  yet  no  doubt  can  now  re- 
main, in  view  of  the  precedents  established  by  all  of  the 
courts,  that  the  word  intentional  refers  alone  to  the  person 
inflicting  the  injury,  and  if,  as  to  the  person  injured, 
the  injury  was  unforeseen,  unexpected,  not  brought 
about  through  his  agency  designedly  or  was  without  his 
foresight,  or  was  a  casualty  or  mishap  not  intended  to  be- 
fall him,  then  the  occurrence  was  accidental,  and  the  injury 
one  inflicted  by  accidental  means,  within  the  meaning  of 
such  policies." 

§  94.  Overwork  As  An  Accident. 

In  Black  v.  New  Zealand  Shipping  Co.  (Eng.)  W.  C.  & 
Ins.  Rep.  480,  6  B.  W.  C.  C.  720,  L.  R.  A.  1916A  (note)  36, 
a  man  worked  very  hard,  seventeen  hours  a  day  for  several 
days  and  almost  continuously  for  the  last  twenty-four 
hours.  Six  days  later  he  dropped  dead  from  heart  failure. 
Some  of  the  medical  evidence  attributed  his  death  to  the 
overwork  above  related.  It  was  held  that  these  facts  did 
not  justify  the  finding  that  the  death  was  due  to  accident. 

§  95.  Accident  a  Question  of  Law  or  Fact. 

Whether  or  not  the  injury  was  caused  by  "accident" 
is  generally  considered  to  be  a  question  of  fact;  and  the 


ACCIDENT,   INJURY  AND  DISEASE  87 

findings  of  the  commission  or  trial  court  will  not  be  dis- 
turbed if  there  is  some  evidence  to  support  them.  Spooner 
v.  Beckwith,  183  Mich.  323,  149  N.  W.  971,  L.  R.  A.  1916A, 
232  (note).  But  in  New  Jersey  it  has  been  held  that,  "the 
question  of  whether  or  not  an  injury  is  an  'accident'  within 
the  purview  of  the  act  is  a  mixed  one  of  law  and  fact.  Roper 
v.  Greenwood,  83  L.  T.  471.  When  applied  to  ascertained 
facts,  it  is  a  question  of  law.  Fenton  v.  Thornely  &  Co., 
App.  Gas.  443,  19  T.  L.  R.  684."  Bryant  v.  Fissell,  84  N. 
J.  L.  72,  86  Atl.  458,  3  N.  C.  C.  A.  585. 

§  96.  Death  Resulting  From  Accidental  Injury. 

It  has  generally  been  held,  that  the  death  was  caused 
by  the  original  accidental  injury,  where  it  really  resulted  in- 
directly through  a  surgical  operation  which  was  necessary 
to  relieve  conditions  caused  by  the  accident.  This  statement 
is  supported  by  the  following  cases :  Lewis  v.  Port  of  Lon- 
don Authority,  W.  C.  &  Ins.  Rep.  299.  In  this  case  Lewis 
died  a  considerable  time  after  the  accident  from  an  oper- 
ation for  tumor  of  the  kidneys  caused  by  the  accident.  In 
the  following  cases  the  death  resulted  from  post-operative 
pneumonia  or  ether-pneumonia.  In  re  Raymond,  Mass. 
Workm.  Comp.  Rep.  [1913]  277;  In  re  Bentley,  217  Mass. 
79,  104  N.  E.  432,  4  N.  C.  C.  A.  559;  Jendrus  v.  Detroit 
Steel  Products  Co.,  178  Mich  265,  144  N.  W.  563;  L.  R.  A. 
1916A  381,  Ann.  Gas.  1913D  476,  4  N.  C.  C.  A.  864;  Favro 
v.  Board  of  Public  Library  Trustee,  1  Gal.  Ind.  Ace.  Comm. 
Dec.  (No.  15)  1. 

For  meaning  under  English  Act  of  phrase  "where  death 
results  from  the  injury,"  see  L.  R.  A.  1916A  (note)  132- 
134. 

§  97.  Burden  of  Proof  As  to  Accident. 

The  burden  of  proving  that  the  injury,  for  which  com- 
pensation is  sought,  was  received  by  accident  is  upon  the 
claimant  Reimers  v.  Proctor  Pub.  Co.  85  N.  J.  L.  441,  89 
Atl.  931,  4  N.  C.  C.  A.  738,  L.  R.  A.  1916A  39,  231. 


88  MANUAL  OF  COMPENSATION  LAW 

§  98.  Accident  May  Be  Established  By  Circumstantial  Evi- 
dence. 

While  the  fact  that  there  was  an  accident  can  not  be 
the  subject  of  mere  conjecture,  Steers  v.  Dunnewald  85 
N.  J.  L.  449,  89  Atl.  1007,  4  N.  C.  C.  A.  676,  L.  R.  A.  1916A 
231,  the  fact  that  there  was  an  accident  which  caused  the 
injuries  may  be  inferred  from  all  of  the  facts  and  circum- 
stances surrounding  the  case.  De  Fazio  v.  Goldschmidt  De- 
tinning  Co.  (N.  J.  Supp.),  88  Atl.  705,  4  N.  C.  C.  A.  716,  L. 
R.  A.  1916A  40,  231.  See  also  10  N.  C.  C.  A.  (note)  618- 
645. 


CHAPTER  III 

ARISING  OUT  OF  AND  IN  THE  COURSE 
OF  EMPLOYMENT 

Section. 

99.    In  general. 

100.  Arising  "out  of"  and  "in  the  course  of"  employment — mean- 

ing. 

101.  "Arising  out  of  and  in  the  course  of  employment"  under  the 

English  decision^. 

102.  Accident  must  result  from  risk  reasonably  incident  to  em- 

ployment. 

103.  Accidents  on  street. 

104.  Before  or  after  working  hours  or  going  to  or  from  work. 

105.  Going  to  lunch  or  preparing  to  go. 

106.  Sportive  acts. 

107.  Death  or  injury  by  lightning  or  other  act  of  God. 

108.  Insanity  and  suicide. 

109.  Seeking  toilet  facilities. 

110.  Heat  and  cold. 

111.  Frostbite. 

112.  Sunstroke. 

113.  Injuries  from  an  assault  by  fellow  employee  or  third  person. 

114.  Injury  to  eyes. 

115.  Going  to  assistance  or  rescue  of  fellow-employee. 

116.  Acts  furthering  the  master's  business  or  protecting  his  prop- 

erty. 

117.  Disobedience  of  positive  instructions  or  enforced  rules. 

118.  Injury  developing  during  treatment  as  one  in  course  of  em- 

ployment. 

119.  Employee  warming  himself  between  cars  in  leisure  time. 

120.  Workman  seeking  shelter  from  storm. 

121.  Truck  driver  putting  up  a  horse. 

122.  Cleaning  a  motorcycle  used  in  employer's  business. 

123.  General  illustrations  concerning  injuries  arising  out  of  and 

in  the  course  of  employment. 

124.  Burden  of  proof. 

125.  May  be  established  by  circumstantial  evidence. 


90  MANUAL  OF  COMPENSATION  LAW 

§  99.  In  General. 

Practically  every  one  of  the  American  Workmen's  Com- 
pensation Acts  use  the  phrase  "arising  out  of  and  in  the 
course  of  employment."  This  phrase  was  borrowed,  in 
the  first  instance,  from  the  British  Act  of  1906.  Texas 
uses  the  phrase  "in  the  course  of  employment" ;  Wyoming, 
"injured  in  extra  hazzardous  employments" ;  West  Virginia, 
"in  the  course  of  employment";  and  Wisconsin  "growing 
out  of  and  incidental  to  employment." 

§  100.  Arising  "Out  of"  and  "In  the  Course  of"  Employ- 
ment— Meaning. 

A  large  body  of  law  has  grown  up  around  this  phrase 
for  the  reason  that  the  question  whether  or  not  a  personal 
injury  by  accident  arises  "out  of"  and  "in  the  course  of" 
employment,  is  fundamental  in  determining  whether  the 
act  applies.  Before  an  injured  man  can  recover  compen- 
sation there  are  two  elements  which  must  be  eliminated. 
He  must  prove  that  his  injury  arose  "out  of"  and  "in  the 
course  of"  his  employment.  Neither  alone  is  enough  (see 
In  re  McNicol,  post).  Each  phrase  has  a  different  mean- 
ing. (See  Steers  v.  Dunnenwald  85  N.  J.  Law  449,  89  Atl. 
1007,  4  N.  C.  C.  A.  676. 

In  Jane  E.  Hopkins  v.  Michigan  Sugar  Co.,  184  Mich. 
87,  150  N.  W.  325,  L.  R.  A.  1916A,  310,  the  court  said :  "It 
is  well  settled  that  to  justify  an  award,  the  accident  must 
have  arisen  'out  of  as  well  as  'in  the  course  of  the  em- 
ployment, and  the  two  are  separate  questions,  to  be  de- 
termined by  different  tests,  for  cases  often  arise  where 
both  requirements  are  not  satisfied.  An  employee  may  suf- 
fer an  accident  while  engaged  at  his  work  or  in  the  course 
of  his  employment  which  in  no  sense  is  attributable  to  the 
nature  of  or  risks  involved  in  such  employment,  and  there- 
fore can  not  be  said  to  arise  out  of  it.  An  accident  arising 
out  of  an  employment  almost  necessarily  occurs  in  the 
course  of  it,  but  the  converse  does  not  follow.  Bradbury, 
Workmen's  Compensation,  p.  398.  'Out  of  points  to  the 
cause  or  source  of  the  accident,  while  'in  the  course  of 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT  91 

relates  to  time,  place,  and  circumstances.  Fitzgerald  v. 
W.  G.  Clarke  &  Son  (1908)  2  K.  B.  796,  77  L.  J.  K.  B.  N.  S. 
1018,  99  L.  T.  N.  S.  101." 

The  same  provision,  in  the  same  words,  is  found  in  the 
Massachusetts  Workmen's  Compensation  Act.  In  McNicoPs 
case,  215  Mass.  497,  102  N.  E.  697,  L.  R.  A.  1916A,  306,  4 
N.  C.  C.  C.  A.  522,  the  controlling  question  was  whether 
fatal  injuries  received  by  an  employee  through  blows  and 
kicks  administered  by  a  fellow  workman,  "in  an  intoxicated 
and  frenzied  passion,"  arose  out  of  the  employment.  The 
court  said :  "It  is  not  easy  nor  necessary  to  the  determina- 
tion of  the  case  at  bar  to  give  a  comprehensive  definition 
of  these  words  which  shall  accurately  include  all  cases  em- 
braced within  the  act  and  with  precision  exclude  those  out- 
side its  terms.  It  is  sufficient  to  say  that  an  injury  is  re- 
ceived 'in  the  course'  of  the  employment  when  it  comes 
while  the  workman  is  doing  the  duty  he  is  employed  to 
perform.  It  'arises  out  of  the  employment  when  there  is 
apparent  to  the  rational  mind  upon  consideration  of  all  of 
the  circumstances,  a  casual  connection  between  the  condi- 
tions under  which  the  work  is  required  to  be  performed 
and  the  resulting  injury.  Under  this  test,  if  the  injury  can 
be  seen  to  have  followed  as  a  natural  incident  of  the  work, 
and  to  have  been  contemplated  by  a  reasonable  person  fa- 
miliar with  the  whole  situation  as  a  result  of  the  exposure 
occasioned  by  the  nature  of  the  employment,  then  it  arises 
'out  of  the  employment.  But  it  excludes  an  injury  which 
can  not  be  fairly  traced  to  the  employment  as  a  contributing 
proximate  cause,  and  which  comes  from  a  hazard  to  which 
the  workmen  would  have  been  equally  exposed  apart  from 
the  employment.  The  causative  danger  must  be  peculiar 
to  the  work,  and  not  common  to  the  neighborhood.  It  must 
be  incidental  to  the  character  of  the  business,  and  not  in- 
dependent of  the  relation  of  master  and  servant.  It  need 
not  have  been  foreseen  or  expected,  but  after  the  event 
it  must  appear  to  have  had  its  origin  in  a  risk  connected 


92  MANUAL  OF  COMPENSATION  LAW 

with  the  employment,  and  to  have  flowed  from  that  source 
as  a  rational  consequence." 

Other  courts  have  construed  these  words  to  practically 
the  same  effect  as  those  quoted.  See  Bryant  v.  Fissell,  84 
N.  J.  L.  72,  86  Atl.  458,  3  N.  C.  C.  A.  585 ;  State  Ex.  rel. 
Duluth  Brewing  &  Malting  Co.  v.  District  Ct,  129  Minn. 
176,  151  N.  W.  912;  Hills  v.  Blair,  182  Mich.  20,  148  N.  W. 
243,  7  N.  C.  C.  A.  409;  Scott  v.  Payne  Bros.  85  N.  J.  L.  446, 
89  Atl.  927,  4  N.  C.  C.  A.  682 ;  Hoenig  v.  Industrial  Com- 
mission, 159  Wis.  646,  150  N.  W.  996,  L.  R.  A.  1916A,  339, 
8  N  C.  C.  A.  192. 

§  101.  "Arising  Out  of  and  In  the  Course  of  Employment" 
Under  the  English  Decisions. 

The  law  on  this  question  is  well  summarized  in  Ruegg's 
Employers'  Liability  and  Workmen's  Compensation  (Eng.) 
p.  p.  373-374,  3  N.  C.  C.  A.  270  (note). 

"1.  That  the  onus  of  proving  both  that  the  accident 
arose  out  of  and  in  the  course  of  the  employment,  rests  up- 
on the  applicant. 

2.  That  the  accident  does  not  arise  out  of  and  in  the 
course  of  the  employment  if  it  is  caused  by  the  workman 
doing  something  entirely  for  his  own  purposes;  or 

3.  The  same  result  follows  when  the  workman  does 
something  which  is  no  part  of  his  duty  toward  his  employer, 
and  which  he  has  no  reasonable  grounds  for  thinking  it 
was  his  duty  to  do. 

4.  The  accident  may  arise  out  of  and  in  the  course  of  the 
employment  if  the  act  which  occasioned  it,  although  not 
strictly  in  the  scope  of  the  workman's  employment,  is  done 
upon  an  emergency. 

5.  It  may  be  said  to  arise  out  of  the  employment  if,  it 
being  the  workmen's  duty  to  do  the  act,  the  accident  arises 
from  his  doing  it  in  an  improper  manner. 

6.  It  may  arise  out  of  and  in  the  course  of  the  employ- 
ment, if  occurring  on  the  employer's  premises,  when  the 
workman  has  not  actually  commenced  his  work,  or  after 
he  has  finished. 


93 

7.  It  may  arise  out  of  and  in  the  course  of  the  employ- 
ment if,  the  workman's  duties  not  being  clearly  defined,  he 
may  reasonably  have  thought  it  a  duty  to  do  the  thing  in 
the  course  of  which  the  accident  occurred. 

8.  It  does  not  arise  out  of  and  in  the  course  of  the  em- 
ployment, if  occasioned  by  the  wilfully  tortious  act  of  a  fel- 
low servant,  when  the  risk  of  such  an  act  can  not  be  said 
to  be  one  of  the  risks  incidental  to  the  service. 

9.  It  may  arise  out  of  and  in  the  course  of  the  employ- 
ment if,  though  occasioned  tortiously,  even  wilfully,  by  the 
act  of  a  third  party,  the  risk  of  injury  from  such  acts  is 
found  to  be  one  of  the  risks  incidental  to  the  employment." 

§  102.  Accident  Must  Result  From  Risk  Reasonably  Inci- 
dent to  Employment. 

In  Bryant  v.  Fissell,  84  N.  J.  Law  42,  86  Atl.  458,  3  N. 
C.  C.  A.  585  the  facts  were  as  follows: 

Bryant  met  his  death  by  reason  of  the  falling  of  a  bar 
of  metal  from  an  upper  floor  of  the  building  on  which  he 
was  at  work,  the  fall  being  caused  by  the  act  of  an  employee 
of  another  contractor  on  the  building.  The  employer,  Fis- 
sell, claimed  that  the  injury  was  not  covered  by  the  law. 

The  three  necessary  points  to  be  established  by  the 
claimant  before  compensation  should  be  due  were  held  to 
be,  first,  that  the  death  was  caused  by  an  accident,  second, 
that  the  injury  arose  out  of  the  employment,  and  third 
that  it  was  in  the  course  of  employment.  Having  concluded 
that  the  injury  was  accidental,  Judge  Trenchard,  speaking 
for  the  court,  said: 

"It  remains  to  be  considered  whether  the  accident  arose 
both  'out  of  and  in  the  course  of  his  employment.'  For  an 
accident  to  arise  out  of  and  in  the  course  of  the  employment, 
it  must  result  from  a  risk  reasonably  incidental  to  the 
employment.  As  was  said  by  Buckley,  L.  J.,  in  Fitzgerald 
v.  Clarke  &  Son  (1908)  2  K.  B.  796,  77  L.  J.  K.  B.  1018: 
'The  words  "out  of"  point,  I  think,  to  the  origin  and  cause 
of  the  accident;  the  words  "in  the  course  of,"  to  the  time, 
place,  and  circumstances  under  which  the  accident  takes 


94  MANUAL  OF  COMPENSATION  LAW 

place.  The  former  words  are  descriptive  of  the  character 
or  quality  of  the  accident.  The  latter  words  relate  to  the 
circumstances  under  which  an  accident  of  that  character 
or  quality  takes  place.  The  character  or  quality  of  the 
accident  as  conveyed  by  the  words  "out  of"  involves,  I  think, 
the  idea  that  the  accident  is  in  some  sense  due  to  the  em- 
ployment. It  must  be  an  accident  resulting  from  a  risk 
reasonably  incident  to  the  employment.'  We  conclude,  there- 
fore, that  an  accident  arises  'in  the  course  of  the  employ- 
ment' if  it  occurs  while  the  employee  is.  doing  what  a  man 
so  employed  may  reasonably  do  within  a  time  during  which 
he  is  employed,  and  at  a  place  where  he  may  reasonably  be 
during  that  time.  That  the  findings  of  fact  in  the  present 
case  justified  the  conclusion  that  the  accident  to  Bryant 
occurred  'in  the  course  of  his  employment  is  beyond  dis- 
pute. We  are  also  of  opinion  that  the  conclusion  of  the 
common  pleas  judge  that  the  accident  arose  'out  of  the  em- 
ployment was  likewise  justified. 

We  conclude,  therefore,  that  an  accident  arises  'out  of 
the  employment  when  it  is  something  the  risk  of  which 
might  have  been  contemplated  by  a  reasonable  person,  when 
entering  the  employment,  as  incidental  to  it. 

A  risk  is  incidental  to  the  employment  when  it  belongs 
to  or  is  connected  with  what  a  workman  has  to  do  in  fulfill- 
ing his  contract  of  service. 

And  a  risk  may  be  incidental  to  the  employment  when 
it  is  either  an  ordinary  risk  directly  connected  with  the 
employment,  or  an  extraordinary  risk  which  is  only  indi- 
rectly connected  with  the  employment  owing  to  the  special 
nature  of  the  employment." 

§  103.  Accidents  on  Street. 

The  general  rule,  supported  by  the  weight  of  authority, 
is  that  when  employees  are  injured  on  the  street,  from 
causes  to  which  all  other  persons  using  the  street  are  like- 
wise exposed,  the  injury  can  not  be  said  to  arise  out  of  the 
employment.  In  Hopkins  v.  Michigan  Sugar  Co.,  184  Mich. 
87,  150  N.  W.  325,  L.  R.  A.  1916A,  310,  an  employee  whose 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT  95 

business  for  the  company  required  him  to  travel  on  the 
streets  between  the  various  establishments  of  the  employer, 
slipped  on  an  ice-covered  sidewalk  while  running  to  catch 
a  street  car.  He  struck  his  head  and  received  injuries  from 
which  he  died.  In  refusing  to  make  an  award  under  the 
Michigan  act,  the  court  said :  "Slipping  upon  snow-covered 
ice  and  falling  while  walking,  or  running,  is  not  even  what 
is  known  as  peculiarly  a  'street  risk';  neither  is  it  a  recog- 
nized extra  hazzard  of  travel,  or  particularly  incidental  to 
the  employment  of  those  who  are  called  upon  to  make  jour- 
neys between  towns  on  business  missions.  *  *  *  This  un- 
fortunate accident  resulted  from  a  risk  common  to  all,  and 
which  arose  from  no  special  exposure  to  dangers  of  the  road 
from  travel  and  traffic  upon  it ;  it  was  not  a  hazard  peculiar- 
ly incidental  to  or  connected  with  the  deceased's  employ- 
ment, and  therefore  is  not  shown  to  have  a  casual  connec- 
tion with  it,  or  to  have  arisen  out  of  it." 

To  the  same  general  effect  see  the  following  cases: 
Rodger  v.  Paisley  School  Board,  49  Scot  L.  R.  413,  5.  B.  W. 
C.  C.  547 ;  Symonds  v.  King,  8  B.  W.  C.  C.  189 ;  Sheldon  v. 
Needham,  7  B.  W.  C.  C.  471 ;  Green  v.  Shaw,  5  B.  W.  C.  C. 
573 ;  Slade  v.  Taylor,  8  B.  W.  C.  C.  65 ;  Newman  v.  Newman, 
169  App.  Div.  745,  155  N.  Y.  Supp.  665,  affirmed  218  N.  Y. 
325,  113  N.  E.  332;  DeVoe  v.  N.  Y.  State  R.  Co.,  169  App. 
Div.  472,  155  N.  Y.  Supp.  12.  See  L.  R.  A.  1916A  (note), 
314,  where  the  above  cases  are  dicussed. 

"Some  of  the  cases,  however,  make  a  distinction  in 
the  case  of  workmen  whose  duties  are  such  that  they  are 
obliged  to  be  continuously  upon  the  street,  or  at  least  to 
spend  a  considerable  portion  of  their  time  there ;  the  theory 
being  that  the  very  nature  of  their  employment  subjects 
them  to  street  dangers,  more  than  persons  are  generally 
subjected,  and  consequently  injuries  from  such  dangers 
must  be  considered  as  arising  out  of  their  employment." 
L.  R.  A.  1916A  (note),  314,  citing  following  authorities: 
McNiece  v.  Singer  Sewing  Machine  Co.,  4  B.  W.  C.  C.  351 ; 
Pierce  v.  Providence  Clothing  &  Supply  Co.,  4  B.  W.  C.  C. 


96  MANUAL  OF  COMPENSATION  LAW 

242;  Martin  v.  Lobibond,  7  B  W.  C.  C.  243,  5  N.  C.  C.  A. 
985;  Bett  v.  Hughes,  8  B.  W.  C.  C.  362;  Milwaukee  v.  Alt- 
hoff,  156  Wis.  68,  145  N.  W.  238,  L.  R.  A.  1916A,  327,  4  N. 
C.C.  A.  110. 

§  104.  Before  or  After  Working  Hours  or  Going  to  or  From 
Work. 

The  general  rule  is  that  workmen's  compensation  acts 
do  not  apply  to  injuries  received  in  going  to  or  coming  from 
work.  But  the  nature  of  the  contract  of  employment  and 
the  circumstances  surrounding  the  accident  might  be  such 
as  to  bring  it  within  the  scope  of  the  act.  In  the  case  of 
De  Constantine,  etc.,  v.  Public  Service  Commission  of  the 
State  of  W.  Va.  75,  W.  Va.  32,  83  S.  E.  88,  L.  R.  A.  1916A, 
329,  the  court  stated  the  general  rule  in  the  head 
note  as  follows:  "An  injury  incurred  by  a  workman  in  the 
course  of  his  travels  to  his  place  of  work,  and  not  on  the 
premises  of  the  employer,  does  not  give  the  rjight  to  partici- 
pation in  such  fund,  unless  the  place  of  injury  was  brought 
within  the  scope  of  employment  by  an  express  or  implied 
requirement  in  the  contract  of  employment  of  its  use  by 
the  servant  in  going  to  and  returning  from  his  work'.'  The 
court  continued:  "Since  injury  after  termination  of  actual 
work,  while  on  the  premises  of  the  employer  and  in  pursuit 
of  the  usual  way  of  leaving  same,  is  held  to  be  within  the 
course  of  employment  and  to  have  arisen  out  of  same,  it 
seems  clear  that  an  injury  to  a  workman  while  coming  to 
his  place  of  work  on  the  premises  of  the  employer,  and  by 
the  only  way  of  access,  or  the  one  contemplated  by  the  con- 
tract of  employment,  must  also  be  regarded  as  having  been 
incurred  in  the  course  of  employment  and  to  have  arisen  out 
of  same.  If,  in  such  case,  injury  does  not  occur  on  the  prem- 
ises, but  in  close  proximity  to  the  place  of  work  and  on  a 
road  or  other  way  intended  or  contemplated  by  the  con- 
tract as  being  the  exclusive  means  of  access  to  the  place  of 
work,  the  same  principle  would  apply  and  govern.  If  the 
place  at  which  the  injury  occurred  is  brought  within  the 
contract  of  employment  by  the  requirement  of  its  use  by 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT  97 

the  employee,  so  that  he  has  no  discretion  or  choice  as  to 
his  mode  or  manner  of  coming  to  work,  such  place  and  its 
use  seem  logically  to  become  elements  or  factors  in  the  em- 
ployment and  the  injury  thus  arises  out  of  the  employment 
and  is  incurred  in  the  course  thereof.  But,  on  the  con- 
trary, if  the  employee  at  the  time  of  the  injury  has  gone 
beyond  the  premises  of  the  employer  or  has  not  reached 
them,  and  has  chosen  his  own  place  or  mode  of  travel,  the 
injury  does  not  arise  out  of  his  employment,  nor  is  it  within 
the  scope  thereof." 

In  Hills  v.  Blair,  182  Mich.  20,  148  N.  W.  243,  7  N.  C. 
C.  A.  409,  the  court  after  discussing  the  cases  on  this  sub- 
ject said:  "In  applying  the  general  rule  that  the  period  of 
going  to  and  returning  from  work  is  not  covered  by  the 
act,  it  is  held  that  the  employment  is  not  limited  by  the 
exact  time  when  the  workman  reaches  the  scene  of  his  labor 
and  begins  it  nor  when  he  ceases,  but  includes  a  reasonable 
time,  space  and  opportunity  before  and  after,  while  he  is  at 
or  near  his  place  of  employment.  One  of  the  tests  some- 
times employed  is  whether  the  workman  is  still  on  the  prem- 
ises of  his  employer.  This  while  often  a  helpful  consider- 
ation is  by  no  means  conclusive.  A  workman  might  be  on 
the  premises  of  another  than  his  employer,  or  in  a  public 
place,  and  yet  be  so  close  to  the  scene  of  his  labors,  within 
its  zone,  environments,  and  hazards,  as  to  be  in  effect  at  the 
place  and  under  the  'protection  of  the  act;  while,  on  the 
other  hand,  as  in  case  of  a  railway  stretching  endless  miles 
across  the  country,  he  might  be  on  the  premises  of  his  em- 
ployer and  yet  far  removed  from  where  his  contract  of  labor 
called  him.  The  protection  of  the  law  does  not  extend,  ex- 
cept by  special  contract,  beyond  the  locality,  or  vicinity,  of 
the  place  of  labor." 

In  City  of  Milwaukee  v.  Althoff,  156  Wis.  68,  145  N.  W. 
238,  L.  R.  A.  1916A,  327,  the  facts  were  as  follows : 

The  circuit  court  of  Dane  County  entered  a  judgment 
affirming  an  award  of  $2,138.11  as  compensation  made  in 
favor  of  Minnie  Althoff,  on  account  of  the  death  of  her 


98  MANUAL  OF  COMPENSATION  LAW 

father,  William  A.  Althoff.  The  deceased,  in  accordance 
with  a  city  ordinance  fixing  the  hours  of  labor  at  eight,  be- 
gan work  at  8  a.  m.  and  finished  at  5  p.  m.  He  was  required 
to  report  to  his  foreman  at  7 : 30  each  morning  to  receive  in- 
structions as  to  where  he  was  to  work.  On  the  morning  of 
May  3,  1912,  he  reported  thus,  and  on  receiving  his  instruc- 
tions proceeded  toward  the  place  where  he  was  to  work. 
While  on  the  way  he  fell  on  a  sidewalk  and  injured  his  knee. 
He  died  on  September  21,  1912,  and  it  was  found  on  suf- 
ficient evidence  that  his  death  was  due  to  the  injury  which 
he  received  when  he  fell.  On  appeal  the  supreme  court  af- 
firmed the  judgment,  holding  that  the  accident  was  within 
the  terms  of  the  statute,  which  provides  that  compensation 
shall  be  paid  where  the  employee  at  the  time  of  the  accident 
is  "performing  service  growing  out  of  and  incidental  to  his 
employment."  The  following  is  quoted  from  the  remarks 
of  Judge  Barnes,  who  delivered  the  opinion  of  the  court : 

"In  the  instant  case,  when  the  servant  reported  to  his 
foreman  and  received  his  instructions  for  the  day  and  pro- 
ceeded to  carry  out  these  instructions  by  starting  for  the 
place  where  he  was  to  work,  we  think  the  relation  of  master 
and  servant  commenced,  and  that  in  walking  to  the  place 
of  work  the  servant  was  performing  a  service  growing 
out  of  and  incidental  to  his  employment." 

In  De  Constantin  v.  Public  Service  Commission  75  W. 
Va.  32,  83  S.  E.  88,  L.  R.  A.  1916A*329,  the  plaintiff,  De 
Constantin,  was  the  acting  royal  consul  of  Italy,  and  made 
application  to  the  court  for  an  order  requiring  the  public 
service  commission  to  allow  a  rejected  claim  for  compen- 
sation on  behalf  of  the  dependents  of  Giuseppe  Zippi. 

Zippi  was  killed  by  a  train  on  the  main  line  of  the  Bal- 
timore &  Ohio  Railroad.  He  was  in  the  employ  of  a  firm  en- 
gaged in  construction  work  on  a  portion  of  the  road.  While 
his  death  occurred  a  few  minutes  before  the  time  for  him 
to  begin  work  in  the  morning,  the  evidence  did  not  show 
that  the  main  line  where  it  happened  was  the  only  or  even 
the  proper  route  for  access  to  his  place  of  work,  and  the 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT  99 

commission  rejected  the  claim  on  the  ground  that  the  injury 
was  not  in  the  course  of  employment.  The  court  sustained 
this  view  and  refused  the  order  applied  for.  Its  conclusions 
are  shown  in  the  following  syllabus  prepared  by  the  court : 

"An  injury  incurred  by  a  workman  in  the  course  of  his 
travel  to  his  place  of  work,  and  not  on  the  premises  of  the 
employer,  does  not  give  right  to  participation  in  such  fund, 
unless  the  place  of  injury  was  brought  within  the  scope  of 
employment  by  an  express  or  implied  requirement  in  the 
contract  of  employment  of  its  use  by  the  servant  in  going 
to  and  returning  from  his  work." 

In  De  Voe  v.  New  York  State  Rys.  218  N.  Y.  318,  113 
N.  E.  256,  affirming  169  App.  Div.  472,  155  N.  Y.  Supp.  12, 
the  widow  of  Edward  De  Voe  was  awarded  compensation 
of  $5.59  weekly  during  widowhood,  together  with  funeral 
expenses,  for  the  death  of  her  husband.  He  had  been  in  the 
employ  of  the  company  named,  which  was  a  self -insurer, 
as  a  motorman,  and  was  run  down  and  killed  by  an  automo- 
bile while  going  from  the  barn  to  take  a  car  to  go  and  have 
his  watch  tested.  This  testing  was  a  requirement  of  his  em- 
ployment, and  was  to  be  done  every  two  weeks  under  pen- 
alty. Employees  were  not  paid  for  their  time  in  having 
the  test  made,  but  the  person  making  it  was  designated 
and  was  paid  by  the  company.  The  court  set  aside  the 
award,  Judge  Woodward,  who  delivered  the  opinion,  saying 
in  part: 

"The  crucial  question  at  all  times  is. whether  he  is  en- 
gaged in  the  hazardous  employments  mentioned  in  the  stat- 
ute, for  it  was  only  as  to  these  that  the  legislature  has  re- 
quired the  employer  to  provide  compensation. 

The  evidence  is  that  the  deceased  had  closed  his  day's 
work,  and  made  his  report  of  his  time  in  writing,  on  which 
his  wages  were  based,  and  that  he  had  passed  out  of  the 
employer's  barn,  and  had  reached  the  middle  of  the  street, 
when  he  was  struck  by  a  passing  automobile,  and  if  the 
master  is  liable  here  he  must  be  so  because  of  a  general  in- 
surance liability.  It  can  not  be  under  the  terms  of  the 


100  MANUAL  OF  COMPENSATION  LAW 

» 

workmen's  compensation  act.  The  State  has  not  yet  re- 
quired the  employer  to  become  a  general  insurer  of  the  lives 
of  his  employees.  It  has  simply  required  that  they  be  pro- 
tected while  engaged  in  the  performance  of  certain  hazard- 
ous employments." 

In  re  Donovan  217  Mass.  76,  104  N.  E.  431,  Ann.  Gas. 
1915C  778,  4  N.  C.  C.  A.  549,  the  employee  Donovan  secured 
a  decree  in  his  favor  in  the  superior  court  of  Suffolk  County. 
From  this  the  insurer  of  his  employer  appealed,  and  the 
point  of  interest  was  as  to  whether  the  injury,  which  oc- 
curred while  the  employee  was  riding  from  his  place  of  work 
in  a  wagon  furnished  by  the  employer,  was  within  the  scope 
of  the  act.  The  court  decided  that  it  was,  affirming  the  de- 
cree of  the  court  below.  The  court  said : 

"From  his  discussion  and  the  cases  referred  to  by  him, 
and  from  the  later  decisions  of  the  English  courts,  the  rule 
has  been  established,  as  we  consider  in  accordance  with 
sound  reason,  that  the  employer's  liability  in  such  cases  de- 
pends upon  whether  the  conveyance  has  been  provided  by 
him,  after  the  real  beginning  of  the  employment,  in  com- 
pliance with  one  of  the  implied  or  express  terms  of  the  con- 
tract of  employment,  for  the  mere  use  of  the  employees,  and 
is  one  which  the  employees  are  required,  or  as  a  matter  of 
right  are  permitted,  to  use  by  virtue  of  that  contract. 
[Cases  cited.] 

The  finding  of  the  industrial  accident  board  that  Dono- 
van's transportation  was  'incidental  to  his  employment' 
fairly  means,  in  the  connection  in  which  it  was  used,  that 
it  was  one  of  the  incidents  of  his  employment,  that  it  was 
an  accessory,  collateral  or  subsidiary  part  of  his  contract 
of  employment,  something  added  to  the  principal  part  of 
that  contract  as  a  minor,  but  none  the  less  a  real,  feature 
or  detail  of  the  contract." 

For  notes  on  this  phase  of  injuries  arising  out  of  and 
in  the  course  of  employment,  see  L.  R.  A.  1916A,  331-333: 
7  N.  C.  C.  A.,  409-434;  12  N.  C.  C.  A.,  368-398;  12  N.  C. 
C.  A.  652-672 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          101 

§  105.  Going  to  Lunch  or  Preparing  to  Go. 

The  general  rule  is  that  injuries  received  while  in  the 
act  leaving  or  preparing  to  leave  the  place  of  employment 
to  get  refreshment  arise  out  of  and  in  the  course  of  employ- 
ment. 

In  Terlecki  v.  Strauss,  et  al.,  85  N.  J.  L.  454,  89  Atl.  1023. 
4  N.  C.  C.  A.  584,  the  court  said :  "A  factory  employee  quit 
work  at  her  machine  shortly  before  noon,  and  was,  in  ac- 
cordance with  custom,  combing  particles  of  wool  out  of  her 
hair,  preparatory  to  going  home,  at  a  point  away  from  her 
machine,  when  her  hair  was  caught  in  other  machinery 
and  she  was  injured.  .  .  .  The  question  whether  the  ac- 
cident arose  out  of  the  employment  is  perhaps  more  doubt- 
ful. The  employment  was  not,  indeed  the  proximate  cause 
of  the  accident,  but  it  was  a  cause  in  a  sense  that,  but  for 
the  employment,  the  accident  would  not  have  happened. 
The  employment  was  one  of  the  necessary  antecedents  to 
the  accident."  It  was  held  that  the  accident  rose  out  of  and 
in  the  course  of  the  employment. 

In  Rayner  v.  Sligh  Furniture  Co.,  180  Mich.  168,  146 
N.  W.  665,  4  N.  C.  C.  A.  851,  L.  R.  A.  1916A  22,  Ann.  Gas. 
1916A  386,  an  employee  at  the  sound  of  the  noon  whistle 
to  quit  work,  ran  to  punch  the  time  clock.  He  ran  into  a 
fellow  employee,  breaking  several  ribs,  one  of  which  punc- 
tured his  lungs  and  caused  death.  The  court  said :  "At  the 
time  of  the  accident,  Rayner  was  in  the  performance  of  a 
duty  imposed  upon  him  by  the  employer.  When  the 
noon  whistle  blew,  it  was  obligatory  upon  him,  before  leav- 
ing the  place  of  his  employment,  to  punch  the  time  clock. 
The  performance  of  this  duty,  if  not  the  proximate  cause, 
was  a  concurring  cause  of  his  injury.  In  Fitzgerald  v. 
Clarke  [1908],  99  L.  T.  101, 1  B.  W.  C.  C.  197,  Buckley,  L.  J., 
stated  the  rule  as  follows:  "The  words  'out  of  and  in  the 
course  of  employment'  are  used  conjunctively,  not  disjunc- 
tively, and,  upon  ordinary  principles  of  construction,  are 
not  to  be  read  as  meaning  'out  of,'  that  is  to  say  'in  the 
course  of.'  The  former  words  mean  something  different 


102  MANUAL  OF  COMPENSATION  LAW 

from  the  latter  words.  The  workman  must 'satisfy  both 
one  and  the  other.  The  words  'out  of  point,  I  think 
to  the  origin  or  cause  of  the  accident;  the  words  'in  the 
course  of  to  the  time,  place  and  circumstances  under  which 
the  accident  takes  place.  The  former  words  are  descriptive 
of  the  character  or  quality  of  the  accident.  The  latter  words 
relate  to  the  circumstances  under  which  an  accident  of  that 
character  or  quality  takes  place.  The  character  or  quality 
of  the  accident  as  conveyed  by  the  words  'out  of  involves, 
I  think,  the  idea  that  the  accident  is  in  some  sense  due  to 
the  employment.  We  are  well  satisfied  that  the  accident 
was  an  industrial  accident  within  the  meaning  of  the  com- 
pensation act,  and  arose  'out  of  and  in  the  course  of  his  em- 
ployment.' ' 

In  Clem  v.  Chalmers  Motor  Co.,  et  al.,  178  Mich.  340, 
144  N.  W.  848,  4  N.  C.  C.  A.  876,  L.  R.  A.  1916A  352,  Clem 
was  working  on  the  top  of  a  building  and  when  called  to 
lunch  by  the  foreman,  he  started  to  come  down  a  rope  in- 
stead of  going  down  a  ladder  provided  for  that  purpose,  and 
was  fatally  injured.  In  holding  that  the  accident  arose  out 
of  and  in  the  course  of  his  employment,  the  court  said: 
"If  when  the  call  to  come  to  lunch  was  made,  Mr.  Clem,  in 
responding  to  the  call,  had  inadvertently  stepped  into  an 
opening  in  the  uncompleted  roof,  or  in  company  with  others 
had  in  the  attempt  to  reach  with  the  ladder,  got  too  near 
the  edge  of  the  roof  and  fallen  and  been  hurt,  would  it  be 
claimed  that  the  injury  did  not  arise  out  of  and  in  the  course 
of  his  employment,  the  getting  of  his  luncheon  under  the 
conditions  shown,  was  just  as  much  a  part  of  his  duty  as 
the  laying  of  a  board  or  the  spreading  of  roofing  material." 

In  re  Sundine,  218  Mass.  1,  105  N.  E.  433,  L.  R.  A. 
1916A  318,  5  N.  C.  C.  A.  616,  the  facts  were  as  follows : 

F.  L.  Dunne  &  Co.  were  merchant  tailors;  Edward  01- 
sen  made  clothing  for  the  company  in  its  workshop,  and 
Emily  Sundine  was  employed  by  Olsen.  The  insurance 
company  holding  Dunne  &  Co.'s  risks  admitted  that  under 
the  Massachusetts  compensation  act  it  was  liable  for  in- 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          103 

juries  to  the  employees  of  the  independent  contractor,  but 
contended  that  the  injury  did  not  arise  out  of  and  in  the 
course  of  employment.  The  injury  was  sustained  while  the 
employee  was  out  of  the  workshop  for  the  purpose  of  get- 
ting lunch,  and  upon  a  flight  of  stairs  which  was  not  under 
the  control  of  either  the  company  or  Olsen,  but  which  fur- 
nished the  only  access  to  the  shop.  Judge  Sheldon,  in  ex- 
pressing the  decision  of  the  court  that  the  compensation 
must  be  paid,  said : 

"Her  employment  was  by  the  week.  It  would  be  too 
narrow  a  construction  of  the  contract  to  say  that  it  was 
suspended  when  she  went  out  for  this  merely  temporary 
purpose,  and  was  revived  only  upon  her  return  to  the  work- 
room. It  was  an  incident  of  her  employment  to  go  out  for 
this  purpose. 

Nor  do  we  regard  it  as  decisive  against  the  petitioner 
that  she  was  injured  while  upon  stairs  of  which  neither  Ol- 
sen nor  Dunne  &  Co.,  had  control,  though  they  and  their 
employees  had  the  right  to  use  them.  These  stairs  were 
the  only  means  available  for  going  to  and  from  the  premises, 
where  she  was  employed,  the  means  which  she  practically 
was  invited  by  Olsen  and  by  Dunne  &  Co.  to  use. 

It  was  a  necessary  incident  of  the  petitioner's  employ- 
ment to  use  these  stairs.  We  are  of  opinion  that  according 
to  the  plain  and  natural  meaning  of  the  words  an  injury 
that  occurred  to  her  while  she  was  so  using  them  arose  'out 
of  and  in  the  course  of  her  employment." 

In  Hills  v.  Blair  182  Mich.  20,  148  N.  W.  243,  7  N.  C. 
C.  A.  409,  Leone  H.  Hills  made  application  for  an  award  of 
compensation  before  the  industrial  accident  board  against 
the  receivers  of  the  Pere  Marquette  Railroad  Co.  on  account 
of  the  death  of  her  husband,  who  had  been  a  section  hand 
on  the  railroad.  The  board  awarded  compensation  to  the 
applicant,  and  the  receivers  appealed.  Hills  on  the  day  of 
the  accident,  had  failed  to  take  his  dinner  as  was  usual,  it 
being  customary  for  the  crew  to  eat  their  lunch  at  a  car 
house.  At  noon  he  started  to  hurry  to  his  home  along  the 


104  MANUAL  OF  COMPENSATION  LAW 

tracks,  a  distance  of  about  2,000  feet.  As  he  went  along  a 
footpath  between  the  tracks,  a  freight  train  was  approach- 
ing from  his  rear.  A  little  later  his  body  was  found  about 
half  the  distance  from  the  car  house  to  where  he  would 
have  left  the  track  near  his  home,  having  evidently  been 
thrown  against  a  switch  standard,  which  was  bent.  It  was 
in  dispute  whether  he  probably,  in  walking  or  running 
alongside  the  train,  went  too  near  it  and  was  thrown  by 
it,  or  whether  he  attempted  to  board  it  to  ride,  or  after 
having  so  boarded  it  attempted  to  get  off  when  he  found 
that  the  speed  was  increasing  and  the  train  was  not  to  stop 
at  that  station.  The  board  having  taken  the  for- 
mer view  in  accordance  with  the  theory  of  the  plain- 
tiff the  court  held  that  it  should  adopt  the  same 
view,  there  being  no  direct  evidence  as  to  how  the 
accident  occurred.  It  held,  however,  that  the  injury  did 
not  arise  out  of  and  in  course  of  the  employment,  and  the 
order  granting  the  award  was  reversed,  the  employee  hav- 
ing left  the  place  of  his  employment  during  the  intermission 
allowed  for  the  eating  of  lunch,  and  not  remaining  on  the 
premises,  in  which  case  the  relation  of  employer  and  em- 
ployee would  not  have  been  broken. 

A  foreman  received  an  injury  to  the  hand  when  it 
touched  a  revolving  fan  in  a  hot  air  pipe.  At  the  time  he 
was  attempting  to  place  a  bottle  in  the  pipe  and  warm  it  for 
his  lunch.  Employees  were  permitted  to  do  this  by  the  em- 
ployer, but  in  an  adjoining  room.  It  was  held  that  the  ac- 
cident did  not  arise  out  of  or  in  the  course  of  employment. 
Mann  v.  Glastohbury  Knitting  Co.,  96  Atl.  368,  90  Conn. 
116. 

The  following  British  cases  held  that  injuries  received 
while  seeking  refreshment  arose  out  of  and  in  the  course 
of  employment.  Carinduff  v.  Gilmore,  48  Ir.  Law  Times 
137,  7  B.  W.  C.  C.  981 ;  Low  v.  General  Steam  Fishing  Co., 
25  Times  L.  R.  787,  53  Sol.  Jo.  763 ;  Martin  v.  Lovibond,"  7 
B.  W.  C.  C.  243 ;  Keenan  v.  Flemington  Coal  Co.,  40  Scot.  L. 
R.  144,  10  Scot,  L.  T.  409 ;  Earnshaw  v.  Lancashire  &  Y.  R. 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          105 

Co.,  5  W.  C.  C.  28;  Morris  v.  Lambeth  Borough  Council, 
22  Times,  L.  R.  22 ;  McLaughlm  v.  Anderson,  48  Scot.  L.  R. 
349,  4  B.  W.  C.  C.  376 ;  Blovelt  v.  Sawyer,  20  Times  L.  R. 
105 ;  McKrill  v.  Howard,  2  B  W.  C.  C.  460.  A  Synopsis  of 
the  holding  of  each  of  the  above  cases  can  be  found  in  L.  R. 
A.  1916A  (note) ,  320.  See  also  7  N.  C.  C.  A.  (note)  431- 
433. 

For  note  on  accidents  occuring  to  employees  during  in- 
termission from  work  as  arising  out  of  and  in  the  course 
of  employment  see  12  N.  C.  C.  A.  551-561. 

§  106.  Sportive  Acts. 

Whenever  an  employee  is  injured  through  some  spor- 
tive act  of  his  own,  the  rule  is  that  the  accident  does  not 
arise  out  of  his  employment,  although  it  may  arise  in  the 
course  of  it.  The  same  is  generally  true  where  two  or  more 
employees  join  in  an  act  and  take  part  in  the  fun. 

In  Mclntyre  v.  Rodger  &  Co.,  6  T.  176,  41  Scot.  L.  R. 
476,  11  Scot.  L.  T.  467,  it  was  said:  "If  two  workmen  leave 
their  work  and  begin  to  indulge  in  horseplay,  they  are  not 
doing  their  master's  work,  but,  on  the  contrary,  are  doing 
what  is  absolutely  inconsistent  with  the  carrying  on  of  their 
master's  work,  and  it  can  not  be  said  that  anything  which 
happens  in  consequence  of  such  conduct  arises  out  of  the 
employment."  But  where  the  injured  employee  took  no  part 
in  the  funmaking  it  has  been  held  that  the  accident  arose 
out  of  the  employment.  Thus  in  Knopp  v.  American  Car 
Foundry  Co.,  186  111.  App.  605,  5  N.  C.  C.  A.  798,  a  work- 
man was  operating  a  trip-hammer  and  another  in  a  spirit  of 
fun  placed  a  tin  can  on  the  lower  die.  While  attempting 
to  knock  this  out  of  the  way,  the  hammer  came  down  on 
his  hand  and  crushed  it  so  that  it  had  to  be  amputated.  The 
court  said :  "Had  appellee,  on  going  to  work  in  the  morn- 
ing found  something  on  the  lower  die  which  interfered 
with  his  work,  it  would  no  doubt  have  been  his  duty  to  re- 
move it,  and  if  injured  in  doing  so  he  would  properly  be 
entitled  to  the  protection  of  this  law.  How  can  his  rights 
be  affected  by  the  fact  that  a  man  who  placed  the  can  on  the 


106  MANUAL  OF  COMPENSATION  LAW 

die  says  he  did  so  'just  to  have  some  fun.'  So  far  as  the 
proper  continuance  of  the  work  was  concerned,  it  was  im- 
material whether  the  obstruction  was  placed  there  by  No- 
vak for  fun  or  was  placed  there  by  some  one  by  mistake  or 
came  there  through  some  accident.  Had  Knopp  been  en- 
gaged in  joking  with  Novak  or  playing  with  him  and  in 
carrying  on  their  pranks,  Novak  would  put  the  can  on  the 
die  and  Knopp  remove  it,  both  entering  into  the  spirit  of 
the  transaction  in  concert,  it  may  be  that  the  appellee  could 
not  be  held  to  have  received  his  injury  in  the  course  of  his 
employment.  But  in  this  case  appellee  took  no  part  in  the 
joking,  but  proceeded  to  clear  the  die  of  the  obstruction  up- 
on it  so  that  he  could  continue  the  work  he  was  employed 
by  appellant  to  do ;  and  what  he  did  was  for  the  benefit  of 
his  employer.  The  proofs  appear  to  us  to  show  plainly  that 
the  injury  sustained  by  appellee  arose  out  of  and  in  the 
course  of  his  employment  and  that  he  is  entitled  to  the 
benefit  of  the  law  under  which  the  proceedings  were 
brought." 

In  Hulley  v.  Moosbrugger,  87  N.  J.  L.  103,  93  Atl.  79, 
L.  R.  A.  1916C  1203,  8  N.  C.  C.  A.  283,  a  plumber's  helper 
while  going  into  a  bin  to  get  some  fittings  dodged  the  arm  of 
a  fellow  workman  thrown  out  in  fun  to  stop  him.  He  fell 
to  a  concrete  floor,  receiving  injuries  from  which  he  died. 
The  court  allowed  compensation  but  on  different  reasoning 
than  in  the  Knopp  case,  supra.  The  court  said :  "In  the  case 
under  consideration,  it  appears  that  the  prosecutor  em- 
ployed young  men  and  boys.  It  is  but  natural  to  expect 
them  to  deport  themselves  as  young  men  and  boys,  replete 
with  the  activities  of  life  and  health.  For  workmen  of  that 
age,  or  even  mature  years  to  indulge  in  a  moment's  diver- 
sion from  work  to  joke  with  or  play  a  prank  upon  a  fellow 
workman  is  a  matter  of  common  knowledge  to  every  one 
who  employs  labor.  At  any  rate,  it  can  not  be  said  that  the 
attack  made  upon  the  decedent  was  so  disconnected  from 
the  decedent's  employment  as  to  take  it  out  of  the  class  of 
risks  reasonably  incident  to  the  employment  of  labor.  At 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          107 

common  law  the  master  was  not  liable  for  an  injury  to  his 
servant  caused  by  the  negligent  act  of  a  fellow  servant  up- 
on the  ground  that  the  servant  assumed  the  risk.  Under 
the  workmen's  compensation  act,  the  master  assumes  all 
risks  reasonably  incident  to  the  employment." 

In  De  Filippis  v.  Falkenberg,  170  App.  Div.  153,  155  N. 
Y.  Supp.  761,  Millie  De  Filippis,  a  girl  15  years 
of  age  was  employed  as  operator  of  a  buttonhole 
machine  in  the  manufacture  of  shirts.  There  were 
in  the  factory  two  adjoining  toilet  rooms  separated 
by  a  partition.  The  employee  went  into  one  of  these,  and 
felt  something  touch  her  on  the  arm.  She  looked  through 
the  crack  to  see  where  the  article  came  from,  and  a  girl 
thrust  some  scissors  through  the  crack  into  her  right  eye, 
causing  nearly  a  total  loss  of  vision  of  the  eye.  The  employer 
and  insurer  appealed  from  an  award  of  compensation  to 
her.  The  court  held  that  the  occurrence  was  an  accident, 
since  it  was  unlocked  for,  and  not  intended  by  either  em- 
ployee. A  number  of  cases  were  reviewed  in  which  it  had 
been  determined  that  accidents  more  or  less  similar  did  or 
did  not  arise  out  of  the  employment,  largely  English  cases, 
but  including  the  Court's  decision  in  favor  of  the  employee 
in  Hulley  v.  Moosbrugger  (93  Atl.  79).  It  is  pointed  out, 
however,  that  in  New  Jersey,  where  the  last-named  case 
arose,  all  employment  excepting  casual  employment  is  cov- 
ered, while  in  New  York  only  certain  hazardous  employ- 
ments are  included.  It  was  held  that  the  accident  was  not 
reasonably  incidental  to  the  service,  and  that  the  judgment 
must  be  reversed. 

The  following  British  cases  support  the  rule  that  in- 
juries sustained  while  engaged  in  sportive  act  do  not  arise 
out  of  the  employment.  Fitzgerald  v.  Clarke  &  Son,  1  B. 
W.  C.  C.  197,  2  K.  B.  796;  Mullen  v.  D.  Y.  Stewart  &  Co., 
Ltd.,  4'5  Scot.  L.  R.  729,  1  B.  W.  C.  C.  204 ;  Wilson  v.  Laing, 
46  Scot.  L.  R.  843,  2  B.  W.  C.  C.  118;  Shaw  v.  Wigan  Coal 
&  Iron  Co.,  3  B.  W.  C.  C.  81 ;  Cole  v.  Evans,  Son,  Lescher  and 
Webb,  Ltd.,  4  B.  W.  C.  C.  138;  Wrigley  v.  Nasnyth,  Wil- 


108  MANUAL  OF  COMPENSATION  LAW 

son  &  Co.,  W.  C.  &  Ins  Rep.  [1913],  145  ;  Clayton  v.  Hard- 
wick  Colliery  Co.  [1914],  W.  C.  &  Ins.  Rep.  343,  8  N.  C. 
C.  A.  (note)  287. 

The  same  rule  has  been  sustained  by  the  following 
decisions  of  Workmen's  Compensation  Boards: 

Kock  v.  Oakland  Brewing  &  Malting  Co.,  1  Cal.  Ind. 
Ace.  Comm.  Dec.  (No.  20,  1914)  23,  8  N.  C.  C.  A.  (note) 
285;  Hawley  v.  Am.  Mut.  Lia.  Ins.  Co.  (Mass),  1  Nat. 
Comp.  Journ.  (Nov.  1914)  20,  8  N.  C.  C.  A.  (note)  285; 
In  re  Zelavzmi,  1  Ohio  Ind.  Comm.  Bull.  (No.  7)  87,  8  N. 
C.  C.  A.  (note)  286.  For  exhaustive  discussion  of  this  sub- 
ject see  notes,  3  N.  C.  C.  A.  283;  5  N.  C.  C.  A.  798;  8  N.  C. 
C.  A.  283;  9  N.  C.  C.  A.  663;  12  N.  C.  C.  A.  789-799. 

§  107.  Death  or  Injury  by  Lightning  or  Other  Act  of  God. 

The  courts  are  in  conflict  as  to  whether  or  not  death 
by  lightning  constitutes  an  accident  arising  out  of  and  in 
the  course  of  employment.  The  better  ruling  seems  to  be 
that  they  are  not  covered.  One  of  the  basic  principles  up- 
on which  workmen's  compensation  acts  are  founded  is  that 
the  workingman  needs  protection  from  the  natural  hazards 
of  the  business  in  which  he  is  engaged  other  than  that  af- 
forded by  the  common  law.  The  danger  of  death  or  injury 
by  lightning  is  common  to  all  classes  of  people.  While  a 
stroke  of  lightning  is  within  the  definition  of  the  word  "ac- 
cident" and  may  be  suffered  "in  the  course  of  employment" 
it  seems  that  the  meaning  of  the  words  must  be  strained 
to  say  that  it  "arose  out  of"  the  employment.  However, 
there  are  authorities  holding  both  ways.  In  Michigan,  in 
the  case  of  Klawinski  v.  Lake  Shore  &  Michigan  Southern 
R.  R.  Co.,  185  Mich.  643,  152  N.  W.  213,  L.  R.  A.  1916A  342, 
the  death  of  a  section  hand,  taking  shelter  in  a  barn  pur- 
suant to  the  orders  of  a  foreman  and  while  there  struck 
by  lightning  and  killed,  was  held  not  to  be  covered  by  the 
Michigan  act.  After  considering  the  decided  cases  the 
court  said:  "It  is  our  opinion  in  the  instant  case  that  the 
claimant's  husband  did  not  come  to  his  death  as  a  result 
of  'a  personal  injury  arising  out  of  and  in  the  course  of  his 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          109 

employment/  within  the  meaning  of  the  workmen's  com- 
pensation law.  It  is  clear  from  the  stipulated  facts  that 
this  injury  was  in  no  way  caused  by  or  connected  with  his 
employment  through  any  agency  of  man  which  combined 
with  the  elements  to  produce  the  injury ;  that  the  plaintiff's 
decedent  by  reasons  of  his  employment  was  in  no  way  ex- 
posed to  injuries  from  lightning  other  than  the  community 
generally  in  that  locality." 

In  the  case  of  Hoenig  v.  Industrial  Commission  of  Wis- 
consin et  al.,  159  Wis.  646,  150  N.  W.  966,  L.  R.  A.  1916A 
339,  an  employee,  working  on  a  dam,  was  struck  by  light- 
ning and  killed.  It  was  contended  that,  when  the  relation 
of  employer  and  employee  had  been  established,  that  he  was 
performing  services  growing  out  of  and  incidental  to  his 
employment  and  that  the  injury  was  proximately  caused 
by  accident  not  intentionally  self-inflicted,  a  case  for  com- 
pensation was  made  out.  The  court  said:  "The  act  should 
be  construed  in  the  light  of  the  history  of  its  passage.  Pur- 
suant to  chapter  518,  Laws  of  1909,  a  committee  was  ap- 
pointed which  investigated  and  presented  a  report  to  the 
legislature  of  1911.  This  report  tends  to  show  the  con- 
struction placed  upon  the  act  by  the  committee,  and  that  it 
was  not  intended  to  include  other  than  industrial  accidents 
or  'hazards  incident  to  the  business.'  ...  It  seems  quite 
clear  that  the  injuries  for  which  compensation  is  to  be 
paid,  under  the  act,  are  such  as  are  incidental  to  and  grow 
out  of  the  "employment.  .  .  .  The  question,  therefore, 
arises  whether  the  injuries  received  by  Hoenig  were  inci- 
dental to  and  grew  out  of  the  employment.  This  proposi- 
tion turns  upon  the  nature  of  the  hazard  to  which  the  de- 
ceased was  exposed  at  the  time  and  place  of  the  injury. 
Was  he  exposed  to  a  hazard  from  lightning  stroke  peculiar 
to  the  industry?  The  Industrial  Commission  held  that  he 
was  not,  and  that  the  exposure  to  hazard  from  lightning 
stroke  at  the  time  and  place  of  the  injury  was  not  different, 
substantially,  from  that  of  the  ordinary  out  of  door  work." 
The  court  denied  compensation  in  this  case. 


110  MANUAL  OF  COMPENSATION  LAW 

A  contrary  view  is  taken  by  .the  Minnesota  court  in  the 
case  of  State  of  Minnesota,  Ex  rel.,  People's  Coal  and  Ice 
Co.  v.  District  Court  of  Ramsey  County  et  al.,  129  Minn. 
502,  153  N.  W.  119,  L.  R.  A.  1916A  344.  In  that  case  a 
driver  of  an  ice  wagon,  having  a  regular  route,  rain  or 
shine,  took  shelter  under  a  tree  during  a  storm  and  was 
killed  by  a  stroke  of  lightning.  The  court  concluded  that 
this  was  an  accident  arising  out  of  and  in  the  course  of  em- 
ployment. After  discussing  the  English,  Irish  and  Ameri- 
can cases,  pro  and  con,  the  court  comes  to  the  above  con- 
clusion without  reciting  its  reasons  in  the  opinion. 

The  English  court  in  Andrew  v.  Farnsworth  Industrial 
Society,  2  K.  B.  32,  90  L.  T.  N.  S.  611,  supports  the  Minne- 
sota view.  While  the  Irish  case  of  Kelly  v.  Kerry  County 
Council,  42  Ir.  Law  Times  23,  1  B.  W.  C.  C.  194,  supports 
the  Michigan  and  Wisconsin  holdings. 

§  108.  Insanity  and  Suicide. 

The  Massachusetts  court  has  held  that  where  a  work- 
man came  to  his  death  by  suicide  while  insane  as  a  result 
of  an  injury,  the  death  was  compensable  if  there  was  an 
unbroken  chain  of  causation  between  the  injury  and  the 
death.  But  it  must  be  borne  in  mind  that  the  word  "in- 
jury" alone  is  used  in  the  Massachusetts  act  and  that  under 
the  acts  generally  the  injury  must  be  by  "accident"  and  the 
death,  "by  accidental  injury."  Yet  in  Malone  v.  Cayzer, 
45  Scot,  L.  R.  351,  1  B.  W.  C.  C.  27,  L.  R.  A.  1916A  (note), 
339,  it  was  held  that  death  from  suicide,  committed  while 
the  workman  was  insane  as  a  result  of  the  injury,  may  be 
found  to  be  due  to  accident. 

In  the  case  of  Standard  Accident  Ins.  Co.  v.  Sponatski, 
220  Mass.  526,  108  N.  E.  466,  L,  R.  A.  1916A  333,  8  N.  C. 
C.  A.  1025,  Sponatski  "received  an  injury  in  the  course  of 
and  arising  out  of  his  employment  through  a  splash  of 
moulten  lead  into  his  eye  on  September  17,  1913.  He  was 
treated  at  a  hospital  until  October  13,  1913,  when,  as  was 
found  by  the  Industrial  Accident  Board,  'while  insane  as  a 
result  of  his  injury,  he  threw  himself  from  a  window  and 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          111 

was  fatally  injured.'  The  board  found  further  that  'this 
insanity  was  brought  about  and  resulted  from  the  injury,' 
and  that  while  the  evidence  was  very  close  upon  that  point, 
the  death  'did  result  from  an  uncontrollable  impulse  and 
without  conscious  volition  to  produce  death,'  under  Dan- 
iels v.  New  York,  N.  H.  &  H.  R.  Co.,  183  Mass.  393,  62  L. 
R.  A.  751,  67  N.  E.  424.  .  .  .  It  is  of  no  significance 
whether  the  precise  physical  harm  was  the  natural  and 
probable,  or  the  abnormal  and  inconceivable,  consequence 
of  the  employment.  The  single  inquiry  is  whether  in  truth 
it  did  arise  out  of  and  in  the  course  of  that  employment. 
If  death  ensues,  it  is  immaterial  whether  that  was  the  rea- 
sonable and  likely  consequence  or  not;  the  only  question  is 
whether  in  fact  death,  'results  from  the  injury.'  Part  2, 
art.  6.  When  that  is  established  as  the  cause,  then  the 
right  to  compensation  is  made  out.  If  the  connection  be- 
tween the  injury  as  the  cause  and  the  death  as  the  effect 
is  proven,  then  the  dependents  are  entitled  to  recover  even 
though  such  a  result  before  that  time  may  never  have  been 
heard  of,  and  might  have  seemed  impossible.  The  inquiry 
relates  solely  to  the  chain  of  causation  between  the  injury 
and  the  death."  Compensation  was  awarded  to  the  de- 
pendents of  the  suicide. 

In  Milliken  v.  Travelers'  Ins.  Co.,  216  Mass.  293,  103 
N.  E.  898,  L.  R.  A.  1916A  337,  the  same  court  held  that 
pneumonia  contracted  by  an  employee,  who  because  of  prior 
injuries,  suffers  a  lapse  of  memory  while  in  charge  of  his 
master's  team,  and,  in  attempting  to  get  the  horses  to  the 
stable,  loses  his  way,  wanders  from  the  wagon  into  a  swamp 
and  suffers  exposure  during  the  night,  is  not  an  injury 
"arising  out  of"  his  employment  within  the  meaning  of  a 
workmen's  compensation  act. 

But  insanity  can  not  be  inferred  merely  from  the  fact 
that  a  workman  who  had  received  an  injury  to  his  eye,  and 
was  suffering  great  pain,  committed  suicide,  although  there 
was  no  other  reason  advanced  for  the  act  except  the  in- 


112  MANUAL  OF  COMPENSATION  LAW 

jury.  Grime  v.  Fletcher,  8  B.  W.  C.  C.  69,  L.  R.  A.  1916A 
(note) ,  339. 

And  it  is  error  for  the  county  judge  to  find  that  a  work- 
man committed  suicide  while  insane  as  a  result  of  an  in- 
jury, where  the  workman's  body  was  found  in  a  canal, 
and  there  was  no  evidence  to  show  how  he  came  to  be  in 
the  canal,  and  there  had  been  no  symptoms  of  a  suicidal 
tendency,  although  he  had  become  depressed  and  irritable 
and  restless  as  a  result  of  the  injury.  Southall  v.  Cheshire 
County  News  Co.,  5  B.  W.  C.  C.  251,  L.  R.  A.  1916A  (note), 
339. 

When  a  workman  is  found  dead  without  evidence  as 
to  what  the  cause  of  death  was  it  has  been  held  that  as 
between  accident  and  suicide  the  natural  legal  presumption 
favors  accident.  Milwaukee  Western  Fuel  Co.  v.  Ind.  Comm. 
159  Wis.  635,  150  N.  W.  998;  Sorensen  v.  Menasha  Paper 
Co.,  56  Wis.  342,  14  N.  W.  446;  W.  R.  Rideout  Co.  v.  Pills- 
bury  —  Cal.  —  159  Pac.  435. 

$  109.  Seeking  Toilet  Facilities. 

If  an  employee  is  injured  by  accident  while  availing 
himself  or  in  the  act  of  going  to  avail  himself  of  toilet  fa- 
cilities, the  accident  and  injury  arise  out  of  and  in  the 
course  of  employment.  If  the  employer  furnishes  ade- 
quate toilet  facilities,  accidents  to  servants  while  seeking 
relief  elsewhere  at  places  of  their  own  choice  are  not  cov- 
ered. Zabriskie  v.  Erie  R.  R.  Co.,  86  N.  J.  L.  266,  92  Atl. 
385,  L.  R.  A.  1916A  315,  4  N.  C.  C.  A.  778;  De  Filippis  v. 
Falkenberg,  170  App.  Div.  153,  155  N.  Y.  Supp.  761 ;  Rose 
v.  Morrison,  4  B.  W.  C.  C.  277,  L.  R.  A.  1916A  (note),  318; 
Thomson  v.  Flemington  Coal  Co.,  4  B.  W.  C.  C.  406;  Cook 
v.  Manver's  Main  Collieries,  7  B.  W.  C.  C.  696;  Cogdon  v. 
Sunderland  Gas  Co.,  1  B.  W.  C.  C.  156,  L.  R.  A.  1916A 
(note),  318. 

In  Zabriskie  v.  Erie  R.  R.  Co.,  supra,  the  employees 
had  no  toilet  facilities  in  the  building  where  they  were  at 
work  but  were  compelled  to  cross  a  public  street  to  another 
building  of  the  employer  to  reach  them.  Zabriskie  while 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT         113 

crossing  the  street  was  run  over  by  a  vehicle  and  killed. 
The  court  said :  "There  can  be  no  doubt  that  the  trial  court 
was  fully  justified  in  finding  that  the  accident  occurred  in 
the  course  of  the  employment  of  the  deceased ;  that  it  took 
place  during  regular  working  hours  and  while  he  was  an- 
swering a  call  of  nature  which  is  liable  to  occur  at  any  time. 
It  was  argued  that  he  was  not  doing  his  employer's  work 
at  the  time,  but  there  is  little  or  no  force  in  this,  for  in  the 
end  it  is  as  important  to  the  employer  as  to  the  employee 
that  the  latter  may  do  his  work  without  unnecessary  phys- 
ical inconvenience.  The  trial  court  was  also  justified  in 
finding  upon  the  evidence  adduced  that  the  accident  arose 
out  of  the  employment.  The  difficulty  in  this  case  arises 
from  the  fact  that  the  place  where  the  deceased  was  struck 
was  a  public  street,  and  that  he  was  struck  by  an  inde- 
pendent agency,  to-wit,  an  automobile  driven  by  a  stranger 
and  lawfully  in  said  street.  Hence  it  is  argued  that  the  de- 
ceased was  not,  and  could  not  have  been,  injured  by  any 
cause  for  which  the  master  was  responsible,  or  to  which 
he  was  subjected  by  the  conditions  of  his  employment. 
But  we  consider  this  argument  also  to  be  without  support. 
It  is  not  only  conceivable,  but  it  is  a  matter  of  daily  oc- 
currence that  employees  are  required  to  do  their  work  un- 
der conditions  which  render  them  liable  to  injury  from  out- 
side agencies." 

§  110.  Heat  and  Cold. 

Injuries  from  heat  and  cold,  such  as  sunstroke,  heat 
prostration,  freezing  and  frost-bite,  caused  by  the  severity 
of  the  natural  elements,  are  not  generally  held  to  be  acci- 
dents arising  out  of  and  in  the  course  of  employment,  un- 
less the  nature  of  the  employment  is  such  that  those  dan- 
gers' are  one  of  the  natural  hazards  connected  with  it.  Fens- 
ler  v.  Associated  Supply  Co.,  1  Cal.  Ind.  Ace.  Comm.  Dec. 
447.  On  the  other  hand,  prostrations  from  artificial  heat 
have  been  generally  considered  within  the  scope  of  the  acts. 
For  the  same  reason  injuries  sustained  from  frost-bite  in 
artificial  ice  factories  would  be  covered,  although  no  case 


114  MANUAL  OF  COMPENSATION  LAW 

has  been  found  to  this  effect.  For  note  on  injury  or  death 
caused  by  atmospheric  conditions  as  an  accident  arising 
out  of  and  in  the  course  of  employment,  see  12  N.  C.  C.  A. 
308-327. 

§111.  Frostbite. 

In  Dorrance  v.  New  England  Pin  Co.,  Conn.  Super  Ct., 
1  Nat.,  Comp.  Journ.  (July,  1914)  23,  6  N.  C.  C.  A.  709 
(note),  a  night  watchman,  whose  duties  included  keeping 
the  fires  alive,  had  to  go  out  in  the  cold  occasionally  to  get 
coal  and  claimed  to  have  thus  sustained  a  frozen  toe.  After 
stating  that  an  injury  must  arise  out  of  and  in  the  course 
of  employment  the  court  said:  "In  other  words,  a  per- 
sonal injury  suffered  by  a  workman  while  pursuing  his 
duties  gives  him  in  itself  no  claim  for  compensation  under 
the  act;  some  essential  relation  and  connection  between  the 
employment  and  the  injury  itself  must  appear.  It  seems 
to  me  that  the  legislative  intent  so  disclosed,  and,  the  mani- 
fest purpose  of  the  act  to  limit  liability  to  cases  where  the 
risk  of  the  precise  injury  involved  is  plainly  incidental  to 
the  employment,  call  for  a  somewhat  stricter  application 
of  the  test  than  the  cited  cases  recognize.  There  are,  of 
course,  employments  where  unusual  exposure  to  extremes 
of  heat  and  cold  is  a  part  of  the  work  and  an  obvious  haz- 
ard, but  I  think  there  is  no  warrant  for  a  construction  of 
the  act  which  would  create  a  liability  of  injuries  of  this 
character  due  to  a  casual  or  occasional  exposure,  in  an  em- 
ployment which  does  not  subject  the  workman  to  open  air 
work,  and  in  a  climate  where  sudden  and  severe  changes 
in  temperature  are  expected." 

The  above  is  apparently  the  decision  of  an  inferior 
court,  but  it  is  in  accord  with  the  British  views  as  expressed 
in  the  Canadian  case  of  the  Canada  Cement  Co.,  22  Que.  K. 
B.  432,  12  D.  L.  R.  303,  7  N.  C.  C.  A.  982,  and  the  English 
case  of  Warner  v.  Couchman,  80  L.  J.  K.  B.  526,  1  N.  C.  C. 
A.  51,  5  B.  W.  C.  C.  177,  and  Karemaker  v.  Owners  of  S.  S. 
Corsican,  4  B.  W.  C.  C.  285. 

In  McManaman's  case  113  N.  E.  286  —  Mass.  —  the 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          115 

finding  of  fact  by  the  Board  was:  "The  evidence  shows 
that  the  employee,  John  McManaman,  was  especially  ex- 
posed, by  reason  of  the  performance  of  his  work  as  a  long- 
shoreman, to  materially  greater  danger  and  a  likelihood  of 
getting  frozen  than  the  ordinary  person  or  outdoor  worker 
on  the  date  upon  which  he  received  the  personal  injury,  a 
frostbite."  The  court  after  considering  the  English  cases 
said :  "Although  the  question  is  a  close  one,  we  are  of  opin- 
ion on  the  whole  that  the  evidence  before  the  Board  war- 
ranted the  finding  made  by  them." 

A  finding  similar  to  the  above  was  made  in  the  case  of 
Skougstad  v.  Star  Coal  Co.,  Rep.  Wis.  Ind.  Comm.  1914- 
15,  page  31.  But  the  contrary  was  held  where  the  work- 
man was  not  subjected  to  any  extraordinary  conditions. 
Aillo  v.  Milwaukee  Refrigerator  Transit  &  Car  Co.,  Rep. 
Wis.  Indus.  Comm.  1914-15,  page  18. 

§  112.  Sunstroke. 

No  American  decisions  by  courts  of  last  resort  have 
been  found  on  this  subject.  The  English  cases  generally 
hold  sunstroke  not  to  be  an  accident  arising  out  of  and  in 
the  course  of  employment.  Robson,  Eckford  &  Co.,  Ltd.,  v. 
Blakey,  49  Scot.  L.  R.  254,  5  B.  W.  C.  C.  536 ;  Rodger  v. 
Paisley  School  Board,  49  Scot.  L.  R.  413,  5  B.  W.  C.  C.  547; 
Olson  v.  The  Dorset,  6  B.  W.  C.  C.  658.  It  has  been  held 
that  the  heat  of  the  sun  intensified  and  supplemented  by 
artificial  heat  and  causing  prostration  was  an  accident  aris- 
ing out  of  and  in  the  course  of  employment.  Davies  v.  Gil- 
lespie,  28  T.  L.  R.  6,  56  Sol.  J.  11,  5  B.  W.  C.  C.  64,  and  Mor- 
gan v.  S.  S.  "Zenaida,"  25  T.  L.  R.  446,  2  B.  W.  C.  C.  19. 
The  same  has  generally  been  held  where  artificial  heat  alone 
produced  the  prostration.  Ismay,  Imrie  &  Co.  v.  William- 
son, 1  B.  W.  C.  C.  232,  6  N.  C.  C.  A.  714  (note) .  A  synopsis 
of  the  above  cases  may  be  found  in  a  note  in  6  N.  G.  C.  A. 
710-715. 

In  Tank  v.  City  of  Milwaukee,  Wis.  Workm.  Comp. 
Rep.  [1914]  80,  the  commission  held  that  a  death  by  sun- 
stroke of  a  man  63  years  of  age  who  was  shoveling  stone 


116  MANUAL  OF  COMPENSATION  LAW 

from  a  car  on  a  hot  day,  did  not  arise  out  of  and  in  the 
course  of  employment. 

The  contrary  ruling  was  made  by  the  Illinois  Industrial 
Board,  in  Kringle  v.  Myers,  6  N.  C.  C.  A.  (note)  713,  where 
a  sunstroke  was  suffered  by  a  plumber's  laborer  while 
working  in  a  trench. 

In  Ohio,  in  Ress  v.  Youngstown  Sheet  &  Tube  Co., 
where  an  employee  suffered  heat  prostration,  probably 
largely  from  artificial  heat,  it  was  held  to  be  an  accident 
for  which  compensation  should  be  awarded.  6  N.  C.  C.  A. 
(note),  713. 

The  general  rule,  as  announced  by  the  cases  up  to  this 
time,  is  that  sunstroke  is  not  an  injury  arising  out  of  and  in 
the  course  of  employment,  because  it  is  not  due  to  a  risk 
incidental  to  the  employment  but  one  which  must  be  taken 
by  everybody. 

§  113.  Injuries  From  An  Assault  by  Fellow  Employee  or 
Third  Person.  .  .{,, 

A  general  rule  can  not  well  be  laid  down  as  to  where 
injuries  by  assault  arise  both  "out  of"  and  "in  the  course 
of"  employment.  They  arise,  "in  the  course  of"  employ- 
ment more  frequently  than  "out  of"  it.  The  nature  of  the 
employment,  the  question  whether  it  was  provoked  by  the 
person  claiming  compensation,  and  all  the  circumstances 
surrounding  the  occurrence  must  be  taken  into  consider- 
ation in  determining  whether  the  injuries  received  by  as- 
sault are  compensable.  But  the  first  thing  to  be  decided  is 
whether  the  assault  is  an  "accident"  or  an  "injury"  within 
the  meaning  of  the  act  (see  §  92),  and  then  the  facts  must 
be  carefully  scrutinized  to  see  whether  it  arose  "out  of" 
and  "in  the  course  of"  the  employment  within  the  well  rec- 
ognized meaning  of  those  terms. 

In  re  Reithel  222  Mass.  163,  109  N.  E.  951,  L.  R.  A. 
1916A  304,  11  N.  C.  C.  A.  235,  the  court  said:  "This  find- 
ing [of  the  industrial  accident  board]  presents  a  case  of 
wholly  unprovoked  murder.  The  question  is,  whether  this 
personal  injury  was  one  'arising  out  of  and  in  the  course 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          117 

of  employment  of  Reithel.  Plainly  it  arose  in  the  course 
of  his  employment.  It  came  upon  him  while  he  was  doing 
his  duty  in  the  place  and  manner  required  by  his  contract 
of  hire. 

The  only  point  of  difficulty  is  whether  it  also  arose 
out  of  the  employment.  The  industrial  accident  board  has 
found  that  it  did.  The  facts  are  not  in  dispute.  The  ques- 
tion to  be  decided  is  whether  as  a  matter  of  law  this  finding 
was  erroneous. 

The  employee  was  the  superintendent  of  a  mill.  It  was 
a  part  of  his  general  duty  to  order  trespassers  from  the 
premises.  In  this  respect  he  was  required  to  deal  with 
those  more  or  less  heedless  of  the  rights  of  others  in  their 
conduct.  Superimposed  upon  this  general  obligation  rest- 
ing on  him  by  reason  of  his  contract  of  employment  was  a 
special  one  respecting  Bombard.  It  came  into  existence 
because  Bombard  on  some  occasion  within  a  few  weeks  be- 
fore the  event  in  question  had  been  upon  the  premises  of 
the  employer.  His  conduct  on  that  occasion  was  of  suffi- 
cient importance  to  form  the  subject  of  a  report  by  the 
superintendent  to  his  superior,  the  manager  of  the  factory. 
In  view  of  these  circumstances,  the  employee  was  given  a 
special  direction  respecting  Bombard.  His  duty  was  de- 
fined in  this  particular.  He  was  to  be  ordered  out,  and 
the  police  were  to  be  summoned  if  he  did  not  go.  The  lia- 
bility to  whatever  personal  injury  might  be  likely  to  arise 
in  dealing  with  such  a  person  was,  therefore,  within  the 
contemplation  of  the  employer  and  employee  in  establish- 
ing the  boundaries  of  the  latter's  duty.  That  became  a 
risk  of  the  employment. 

Under  our  workmen's  compensation  act  it  is  not  re- 
quired that  the  injury  be  also  an  accident,  differing  in  this 
respect  from  the  English  act  and  being  more  liberal  to  the 
employee.  But  even  under  the  English  act,  in  the  present 
case,  the  dependent  would  be  awarded  compensation." 

In  McNicol  et  al.,  v.  Emp.  Lia.  Ins.  Corp.  Ltd.,  215 
Mass.  497,  102  N.  E.  697,  L.  R.  A.  1916A  306,  4  N.  C.  C.  A. 


118  MANUAL  OF  COMPENSATION  LAW 

522,  a  workman  was  assaulted  and  killed  by  a  drunken 
and  frenzied  fellow  workman,  who  was  permitted  to  con- 
tinue at  work  although  the  employer  knew  that  he  was 
intoxicated  and  quarrelsome.  It  was  held  that  his  injuries 
arose  "out  of"  and  "in  the  course  of"  his  employment.  The 
court  said: 

"The  first  question  is  whether  the  deceased  received  an 
'injury  arising  out  of  and  in  the  course  of  his  employment,' 
within  the  meaning  of  those  words  in  part  2,  section  1  of 
the  act.  In  order  that  there  may  be  recovery  the  injury 
must  both  arise  out  of  and  also  be  received  in  the  course 
of  the  employment.  Neither  alone  is  enough. 

It  is  not  easy  nor  necessary  to  the  determination  of  the 
case  at  bar  to  give  a  comprehensive  definition  of  these 
words  which  shall  accurately  include  all  cases  embraced 
within  the  act  and  with  precision  exclude  those  outside  its 
terms.  It  is  sufficient  to  say  that  an  injury  is  received  'in 
the  course  of  the  employment  when  it  comes  while  the 
workman  is  doing  the  duty  which  he  is  employed  to  per- 
form. It  arises  'out  of  the  employment,  when  there  is  ap- 
parent to  the  rational  mind  upon  consideration  of  all  the 
circumstances,  a  causal  connection  between  the  conditions 
under  which  the  work  is  required  to  be  performed  and  the 
resulting  injury.  Under  this  test,  if  the  injury  can  be  seen 
to  have  followed  as  a  natural  incident  of  the  work  and  to 
have  been  contemplated  by  a  reasonable  person  familiar 
with  the  whole  situation  as  a  result  of  the  exposure  occa- 
sioned by  the  nature  of  the  employment,  then  it  arises 
'out  of  the  employment.  But  it  excludes  an  injury  which 
can  not  fairly  be  traced  to  the  employment  as  a  contribut- 
ing proximate  cause  and  which  comes  from  a  hazard  to 
which  the  workman  would  have  been  equally  exposed  apart 
from  the  employment.  The  causative  danger  must  be  pe- 
culiar to  the  work  and  not  common  to  the  neighborhood. 
It  must  be  incidental  to  the  character  of  the  business  and 
not  independent  of  the  relation  of  master  and  servant.  It 
need  not  have  been  foreseen  or  expected,  but  after  the  event 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT         119 

it  must  appear  to  have  had  its  origin  in  a  risk  connected 
with  the  employment,  and  to  have  flowed  from  that  source 
as  a  rational  consequence. 

The  definition  formulated  above,  when  referred  to 
the  facts  of  these  cases,  reaches  results  in  accord  with  their 
conclusions.  Applying  it  to  the  facts  of  the  present  case, 
it  seems  plain  that  the  injury  of  the  deceased  arose  'out 
of  and  in  the  course  of  his  employment.'  The  findings  of 
the  industrial  accident  board  in  substance  are  that  Stuart 
McNicol,  while  in  the  performance  of  his  duty  at  the  Hoo- 
sac  Tunnel  Docks  as  a  checker  in  the  employ  of  a  firm  of 
importers,  was  injured  and  died  as  a  result  of  'blows  or 
kicks  administered  to  him  by  ...  [Timothy]  McCar- 
thy/ who  was  in  'an  intoxicated  frenzy  of  passion.'  McCar- 
thy was  a  fellow  workman  who  'was  in  the  habit  of  drink- 
ing to  intoxication,  and  when  intoxicated,  was  quarrelsome 
and  dangerous,  and  unsafe  to  be  permitted  to  work  with 
his  fellow  employees,  all  of  which  was  known  to  the  super- 
intendent Matthews,'  who  knowingly  permitted  him  in  such 
condition  to  continue  at  work  during  the  day  of  the  fa- 
tality— which  occurred  in  the  afternoon.  The  injury  came 
while  the  deceased  was  doing  the  work  for  which  he  was 
hired.  It  was  due  to  the  act  of  an  obviously  intoxicated 
fellow  workman,  whose  quarrelsome  disposition  and  in- 
ebriate condition  were  well  known  to  the  foreman  of  the 
employer.  A  natural  result  of  the  employment  of  a  peace- 
able workman  in  company  with  a  choleric  drunkard  might 
have  been  found  to  be  an  attack  by  the  latter  upon  his  com- 
panion." 

In  Western  Indemnity  Co.  v.  Pillsbury  et  al.,  170  Cal. 
686,  151  Pac.  398,  10  N.  C.  C.  A.  1,  L.  Rudder  proceeded 
against  his  employer,  the  Ocean  Shore  Railroad  Co.,  and 
its  insurer,  the  Western  Indemnity  Co.,  for  compensation 
under  the  California  act  of  1913,  known  as-  the  Boynton 
Act.  Compensation  was  awarded,  and  the  insurer  brought 
the  case  to  the  supreme  court  by  means  of  a  writ  of  cer- 
tiorari. 


120  MANUAL  OF  COMPENSATION  LAW 

Rudder  was  foreman  of  a  crew  of  15  or  20  section  hands, 
mostly  Greeks.  According  to  the  findings  of  the  industrial 
accident  commission  Rudder,  on  the  12th  of  April,  1914, 
observed  that  one  Pappas  was  not  doing  his  work  of  shovel- 
ing properly,  and  took  the  shovel  from  the  Greek  and 
showed  him  how  it  should  be  done.  The  laborer  continuing 
to  work  in  an  improper  manner,  the  foreman  told  him 
to  drop  his  shovel  and  get  his  time.  This  was  not  done, 
and  when  the  foreman  attempted  to  take  the  shovel  away, 
the  man  struck  him  with  the  flat  side  of  it.  Rudder  then 
said  he  would  make  him  drop  the  shovel  and  stepped  back 
to  get  a  stick  5  or  6  feet  long.  The  workman  meantime 
picked  up  a  stone,  but  on  the  approach  of  the  foreman 
dropped  this  and  again  struck  with  the  shovel,  missing  his 
mark,  however.  The  foreman  then  inflicted  a  blow  with 
the  stick,  which  felled  the  man  to  his  knees.  The  latter 
seized  the  foreman  by  the  legs  and  threw  him,  and  climb- 
ing upon  him,  for  15  minutes  inflicted  severe  lacerations 
with  his  teeth  upon  the  foreman's  face,  hands  and  arms, 
which  resulted  in  blood  poisoning  and  prolonged  disability. 
There  being  conflicting  evidence,  the  court  accepted  as  true 
the  findings  of  fact  of  the  commission  as  above  stated;  it 
also  held  that  the  commission  was  not  in  error  as  a  matter 
of  law  in  holding  that  the  occurrence  was  an  accident,  and 
one  arising  out  of  and  in  the  course  of  Rudder's  employ- 
ment. As  to  this  the  court,  said  in  part: 

"The  circumstance  that  the  injury  was  the  result  of  a 
willful  or  criminal  assault  by  another  does  not  exclude  the 
possibility  that  the-  injury  was  caused  by  accident  [citing 
authorities].  .  .  . 

Under  these  and  other  authorities,  it  is  clear  that  an 
injury  caused  by  the  attack  of  a  third  person  may  be  ac- 
cidental so  far  as  the  injured  person  is  concerned.  On  the 
other  issue,  whether  the  injury  occurred  in  the  course  of 
the  employment  of  Rudder,  it  must  also  be  held  that  the 
finding  of  the  commission  was  sustained  by  sufficient  evi- 
dence. The  question,  simply  stated,  is  whether  the  injury 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          121 

resulted  from  Rudder's  undertaking  to  do  something  in  the 
line  of  his  duty,  or  whether  it  occurred  as  the  result  of  his 
going  outside  the  scope  of  his  employment  and  entering 
upon  a  private  quarrel  for  reasons  of  his  own.  The  facts 
found  justify  the  inference  that  Rudder  was  hurt  in  an 
altercation  which  grew  out  of  his  justifiable  efforts  to  main- 
tain his  authority  as  foreman  and  to  protect  the  property 
of  his  employer  intrusted  to  his  care." 

In  Nebraska  it  was  held  that  if  an  employee  is  assaulted 
either  in  anger  or  in  play  and  sustains  an  injury  it  does 
not  arise  out  of  the  employment,  and  he  is  not  entitled  to 
compensation.  Pierce  v.  Boyer-Van  Kuran  Lumber  &  Coal 
Co.,  99  Neb.  321,  156  N.  W.  509,  L.  R.  A.  1916D  970. 

For  notes  concerning  assault  as  arising  out  of  and  in 
the  course  of  employment,  see  L.  R.  A.  1916A  309-310,  64, 
239;  6  N.  C.  C.  A.  1010-1030,  11  N.  C.  C.  A.  235-254. 

§  114.  Injury  to  Eyes. 

Injuries  to  the  eyes  must,  like  all  others,  be  shown  to 
have  arisen  both  out  of  and  in  the  course  of  employment. 
The  injury  to  the  eye  must  be  shown  to  be  clearly  traceable 
to  the  accident  out  of  which  it  grows;  and  if  something 
other  than  the  accident  was  the  proximate  cause  of  the  in- 
jury to  the  eye  the  resultant  disability  is  not  within  the 
scope  of  the  act. 

In  McCoy  v.  Michigan  Screw  Co.,  180  Mich.  454,  147 
N.  W.  572,  L.  R.  A.  1916A  323,  McCoy  got  some  steel  filings 
in  his  eye  while  working  at  a  machine.  He  rubbed  the  eye 
which  became  infected  and  later  caused  its  loss.  The  medi- 
cal testimony  was  that  the  eye  was  lost  through  gonorrheal 
infection.  The  court  said:  "In  the  instant  case  it  it  not 
reasonable  to  say  that  he  would  not  have  rubbed  his  eye 
if  the  steel  had  not  lodged  there.  He  might  not  have  rubbed 
his  eye,  it  is  true;  but  it  is  just  as  reasonable  to  suppose 
that  he  might  have  had  occasion  to  rub  his  eye  without  this 
particular  inciting  cause.  By  the  medical  testimony  it 
conclusively  appears  that  the  infection  could  have  taken 
place  if  the  steel  had  not  been  there.  It  must  be  said  from 


122  MANUAL  OF  COMPENSATION  LAW 

this  record,  that  the  loss  of  the  eye  was  directly  and  im- 
mediately due  to  the  infection  caused  by  the  gonorrhea, 
which  it  can  not  be  claimed  is  a  risk  incident  to  the  em- 
ployment. We  are  of  the  opinion  that  the  facts  are  not 
capable  of  supporting  the  inference,  that  the  injury  arose 
out  of  and  in  the  course  of  the  employment." 

The  Wisconsin  court  in  Voelz  v.  Industrial  Commission, 
161  Wis.  240,  152  N.  W.  830,  L.  R.  A.  1916A  (note),  326, 
under  similar  facts  came  to  the  same  conclusion.  This 
position  is  also  supported  by  Bellamy  v.  Humphries  (Eng.), 
6  B.  W.  C.  C.  53.  However,  if  the  particles  come  into  the 
eye  while  the  workman  is  performing  his  regular  duties  the 
mere  fact  that  the  injury  to  the  eye  is  aggravated  by  the 
fact  that  the  injured  man  rubbed  it  does  not  defeat 
compensation.  Adams  v.  Thompson,  5  B.  W.  C.  C.  19,  6 
N.  C.  C.  A.  883  (note),  L.  R.  A.  1916A  326  (note).  For 
further  discussion  of  cases  in  point,  see  L.  R.  A.  1916A 
326  (note),  6  N.  C.  C.  A.  880  (note). 

§  115.  Going  to  Assistance  or  Rescue  of  Fellow  Employee. 

In  Dragovich  v.  Iroquois  Iron  Co.,  269  111.  478,  109  N. 
E.  999,  10  N.  C.  C.  A.  475,  Peter  Dragovich  brought  pro- 
ceedings for  compensation  for  the  death  of  Frank  M.  Mar- 
kusic,  which  occurred  while  the  latter  was  in  the  employ 
of  the  company  named.  Judgment  was  awarded  in  the 
sum  of  $3,500  in  the  circuit  court  of  Cook  County,  on  an 
appeal  by  the  employer  from  the  report  of  the  board  of 
arbitration. 

It  appeared  that  the  employee,  in  running  to  aid  an- 
other employee  who  had  fallen  through  an  opening  in  the 
floor  into  hot  water,  and  who  shouted  for  help  in  Croatian, 
the  native  language  of  both,  had  himself  fallen  into  the 
hole.  The  opening  could  not  be  seen  on  account  of  steam 
arising  from  it.  The  other  employee  was  rescued  by  others 
about  the  same  time  that  Markusic  fell  in.  The  latter  died 
two  days  later  from  the  effects  of  the  scalding.  The  court 
held  that  the  injury  arose  out  of  and  in  the  course  of  em- 
ployment, and  affirmed  the  award.  Judge  Carter,  who  de- 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT         123 

livered  the  opinion,  referring  to  the  phrase  "arising  out 
of  and  in  the  course  of  employment,"  said: 

"This  provision  of  the  statute  has  never  been  construed 
by  this  court,  but  somewhat  similar  acts  have  been  con- 
strued by  the  courts  in  other  jurisdictions.  Under  these 
authorities  it  is  clear  that  it  is  the  duty  of  an  employer 
to  save  the  lives  of  his  employees,  if  possible,  when  they 
are  in  danger  while  in  his  employment,  and  therefore  it  is 
the  duty  of  a  workman  in  his  employ,  when  occasion  pre- 
sents itself,  to  do  what  he  can  to  save  the  lives  of  his  fellow 
employees  when  all  are  at  the  time  working  in  the  line  of 
their  employment.  Any  other  rule  of  law  would  be  not 
only  inhuman,  but  unreasonable  and  uneconomical,  and 
would,  in  the  end,  result  in  financial  loss  to  employers  on 
account  of  injuries  to  their  employees.  From  every  point 
of  view  it  was  the  duty  of  the  deceased,  as  a  fellow  em- 
ployee, in  the  line  of  his  duty  to  his  employer,  to  attempt  to 
save  the  life  of  his  fellow  employee  under  the  circumstances 
here  shown.  That  he  failed  in  his  attempt  does  not,  in  the 
slightest  degree,  change  the  legal  situation." 

In  Mihaica  v.  Mlagenovich  and  Gillespie,  1  Cal.  Ind. 
Ace.  Comm.  Dec.  (1914)  174,  10  N.  C.  C.  A.  (note)  478, 
there  was  a  cave-in  on  some  sewer  work.  Many  of  the 
employees  including  Mihaica  were  warned  of  the  danger 
in  time  to  escape  but  several  were  caught.  In  spite  of  the 
danger  Mihaica  went  back  to  the  assistance  of  those  in 
the  ditch  and  was  killed.  The  defense  of  willful  miscon- 
duct was  made  but  was  not  considered  by  the  commission 
which  said:  "The  deceased  was  the  only  one  of  the  em- 
ployees who  responded  to  the  call  of  his  fellow  workmen 
for  help  and  he  lost  his  life  in  the  effort  to  effect  a  rescue. 
Such  conduct  is  not  misconduct  much  less  willful  miscon- 
duct. The  action  of  the  deceased  was  humane  and  wholly 
commendable.  Even  though  he  deliberately  exposed  him- 
self to  the  danger  of  injury  and  death  his  action  can  not 
be  said  to  be  willful  in  the  sense  of  being  stubborn,  perverse, 
or  as  evidencing  a  state  of  mind  opposed  to  the  orders  or 


124  MANUAL  OF  COMPENSATION  LAW 

instructions  given  him,  or  as  opposed  to  the  action  that 
reasonably  should  have  been  taken  by  him,  both  as  fellow 
employee  and  in  his  official  capacity  as  assistant  fore- 
man." 

In  Menzies  v.  McQuibban,  2  F.  732,  37  Sc.  L.  R.  526,  10 
N.  C.  C.  A.  (note),  480,  a  laborer  went  to  the  assistance 
of  a  machinist  who  was  having  difficulty  in  adjusting  a 
belt.  The  machinery  was  in  motion.  While  acting  as  di- 
rected by  the  machinist  the  laborer  was  caught  in  the  belt 
and  received  fatal  injuries.  The  court  said:  "The  words 
'arising  out  of  and  in  the  course  of  employment'  appear  to 
me  to  be  sufficient  to  include  something  which  occurs  while 
the  workman  is  in  his  master's  employment  and  on  his 
master's  work,  although  he  is  doing  something  in  the  in- 
terest of  his  master  beyond  the  scope  of  what  he  was  em- 
ployed to  do.  The  act  does  not  say  'when  doing  the  work 
he  was  employed  to  perform,'  and  it  is  a  fair  inference  that 
if  it  had  been  intended  to  limit  the  right  to  compensation 
to  such  accidents  different  language  would  have  been  used 
from  that  which  occurs  in  the  act.  It  must  be  assumed 
therefore,  that  the  legislature  used  language  of  wider  scope 
to  include  cases  where  a  workman  intervenes  to  do  some- 
thing useful  or  helpful  to  his  master,  although  outside  the 
special  duties  which  he  is  employed  to  perform." 

For  rfote  on  acts  performed  in  emergencies  as  being 
within  the  sphere  of  employment  under  the  compensation 
laws,  see  10  N.  C.  C.  A.  475-493. 

§  116.  Acts  Furthering  the  Master's  Business  or  Protecting 
His  Property. 

In  State  ex  rel  Duluth  Brewing  &  Malting  Co.  v.  Dis- 
trict Court,  129  Minn.  176,  151  N.  W.  912,  the  question 
presented  was  as  to  whether  the  injury  was  one  arising  out 
of,  as  well  as  in,  the  course  of  his  employment,  and  the 
supreme  court  decided  that  it  was  such,  affirming  the  judg- 
ment below  in  the  employee's  favor. 

The  employee  was  foreman's  helper,  and  had  varied 
duties  among  which  was  that  of  replacing  the  electric  light 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          125 

bulbs  in  the  bottling  room  when  defective.  These  were 
covered  with  wire  screens  to  prevent  breakage,  and  each 
was  locked,  the  foreman  carrying  the  key,  a  simple  three- 
cornered  contrivance.  On  April  9,  1914,  De  Cook  was 
handed  by  another  workman  what  was  apparently  an  empty 
cartridge  shell  of  unusual  length.  It  occurred  to  him  that 
this  could  easily  be  made  into  a  key,  and  save  the  time  nec- 
essary to  hunt  up  the  foreman  and  carry  the  key  back  and 
forth  when  the  light  bulbs  had  to  be  replaced.  He  at- 
tempted to  do  this,  using  a  hammer,  and  it  proved  that  the 
article  was  an  unexploded  dynamite  cap,  which  exploded, 
a  portion  piercing  his  right  eye  and  destroying  the  sight. 
Judge  Holt,  in  delivering  the  opinion,  from  which  one 
judge  dissented,  spoke  in  part  as  follows: 

"The  trial  court  evidently  took  the  view  that  De  Cook 
in  good  faith  believed  he  was  furthering  his  master's  busi- 
ness and  performing  an  act  which  he  might  reasonably  be 
expected  to  do  when  he  undertook  to  supply  himself  with 
a  key.  He  had  never  been  told  that  the  light  bulbs  were 
to  be  under  lock  as  to  him  who  was  charged  with  the  duty 
of  seeing  that  the  broken  and  defective  ones  were  replaced. 
When  a  servant  undertakes  in  the  course  of  his  employ- 
ment, during  the  proper  hours  therefor,  and  in  the  proper 
place,  to  do  something  in  furtherance  of  his  master's  busi- 
ness, and  meets  with  accidental  injury  therein,  the  trial 
court's  finding  that  the  accident  arose  out  of  and  in  the 
course  of  employment  should  not  be  disturbed,  unless  it  is 
clear  to  us  that  the  ordinary  servant  in  the  same  situation, 
would  have  no  reasonable  justification  for  believing  that 
what  he  undertook  to  do  when  injured  was  within  the  scope 
of  his  implied  duties.  If  another  servant  duly  engaged  in 
the  master's  work  had  had  his  sight  destroyed,  instead  of 
De  Cook,  in  this  accident,  the  thought  would  have  been  al- 
most irresistible  that  this  law  was  meant  to  cover  such  in- 
jury. But,  upon  the  facts  in  this  case,  we  doubt  whether 
De  Cook  should  occupy  a  less  favorable  position.  If  the  at- 
tempt to  make  a  key  was  reasonably  within  the  scope  of  his 


126  MANUAL  OF  COMPENSATION  LAW 

employment,  the  fact  that,  from  ignorance  or  error  of 
judgment,  he  made  use  of  dangerous  material,  not  provided 
by  the  master,  should  not  necessarily  exclude  the  conclusion 
that  the  injury  arose  out  of  the  employment.  The  term 
can  not  be  restricted  to  injuries  caused  from  anticipated 
risks  of  the  service,  if  the  law  is  to  be  of  the  benefit  in- 
tended." 

A  night  watchman  was  killed  in  a  shooting  affray  with 
deputy  sheriffs,  believing  them  to  be  escaping  bank  rob- 
bers. He  was  working  for  a  construction  company  and 
was  not  going  to  protect  his  employer's  property.  It  was 
held  that  the  injury  did  not  arise  out  of  the  employment, 
within  the  meaning  of  the  Massachusetts  Act.  In  re  Har- 
broe  111  N.  E.  709,  223  Mass.  139. 

Charlotte  Hendricks  proceeded  under  the  workmen's 
compensation  act  for  the  death  of  Richard  Hendricks,  who 
had  been  a  helper  on  a  truck  belonging  to  the  firm  named. 
The  operation  of  a  truck  on  a  highway  is  defined  in  the  law 
as  a  hazardous  employment.  It  was  held  that  this  included 
the  work  of  the  helper  in  loading  and  unloading,  watching 
and  protecting  the  goods,  etc. 

The  employee  had  ordered  some  boys  to  get  off  the  rear 
of  the  wagon,  and  when  they  did  not  obey,  he  jumped  from 
it  to  drive  them  away,  fell  and  was  killed.  It  was  held  that 
the  work  of  protecting  the  employer's  goods  and  interests 
was  a  duty  arising  out  of  and  in  the  course  of  his  employ- 
ment, and  that  the  fact  that  he  may  have  been  impulsive 
and  imprudent  made  no  difference.  An  award  in  favor  of 
the  claimant  was  therefore  affirmed.  Hendricks  v.  Seeman 
Bros.,  170  App.  Div.  133,  155  N.  Y.  Supp.  638. 

A  carpenter  was  working  for  his  brother  who  owned 
a  piece  of  property  on  which  he  was  building,  and 
also  a  lot  next  to  it.  He  instructed  his  brother  not  to  al- 
low any  building  material  not  intended  for  him  to  be  de- 
posited on  this  vacant  lot.  A  teamster  attempted  to  do  this 
and  the  employee  engaged  him  in  a  fight  and  drove  him 
off.-  The  teamster  came  back  the  next  day  with  some  con- 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          127 

federates.  The  employee's  brother  was  present  and  him- 
self engaged  the  teamster  in  a  fight.  His  brother  volun- 
tarily came  out  of  the  house  and  held  off  the  confederates 
while  his  brother  was  fighting.  One  of  those  he  was  hold- 
ing off  threw  a  piece  of  iron  which  struck  him  in  the  eye. 
It  was  held  that  there  was  no  connection  between  this  vol- 
untary act  and  the  protection  of  his  master's  property,  as 
his  master  on  this  second  occasion  was  there  in  person  and 
was  protecting  it.  It  was  held  that  this  was  not  an  acci- 
dent arising  out  of  and  in  the  course  of  his  employment, 
under  the  Michigan  Act.  Clark  v.  Clark,  155  N.  W.  507 
(Mich.) 

§  117.  Disobedience  of  Positive   Instructions  or  Enforced 
Rules. 

It  has  been  held  quite  generally  that  when  an  employee 
deliberately  disobeys  positive  instructions  or  enforced 
rules,  made  to  reduce  the  natural  hazards  of  the  business, 
he  thereby  takes  himself  "out  of"  his  employment.  In 
Smith  v.  Corson,  —  N.  J.  Law — ,  93  Atl.  112,  Smith  had 
been  employed  as  a  carpenter,  and  was  killed  on  the  21st 
day  of  April,  1913,  by  a  fall  from  a  board  laid  across  a 
scaffold.  The  trial  judge  found  as  facts  that  the  deceased 
was  not  a  strong,  healthy  man,  was  employed  at  less  pay 
than  the  regular  carpenters,  and  was  expressly  told  by 
his  employer  not  to  go  upon  the  scaffolds  nor  do  any  climb- 
ing; also  other  facts  which  might  indicate  that  at  the  time 
of  the  accident  he  was  not  actually  working.  This  judge 
nevertheless  found  that  the  accident  was  one  arising  out 
of  and  in  the  course  of  employment.  The  supreme  court 
reversed  the  judgment  in  favor  of  the  petitioner,  saying 
in  part: 

"This  latter  finding  [that  the  accident  arose  out  of  and 
in  course  of  employment]  can  not  be  reconciled  with  the 
other  facts  found  by  the  trial  judge,  and  is  expressly  gain- 
said by  his  finding  of  fact  that  the  decedent  was  told  by  his 
employer  'to  keep  off  scaffolds  and  not  to  do  any  climbing.' 
His  mishap  and  death  were  directly  due  to  his  own  disre- 


128  MANUAL  OF  COMPENSATION  LAW 

gard  of  his  master's  express  orders.  He  was,  on  the  scaf- 
fold, not  in  the  course  of  his  employment  but  in  direct  vio- 
lation of  it,  and  therefore  it  can  not  be  said  that  the  in- 
juries which  caused  his  death  arose  out  of  his  employ- 
ment." 

In  Reimers  v.  Proctor  Publishing  Co.,  85  N.  J.  Law  441, 
89  Atl.  931,  4  N.  C.  C.  A.  738,  Reimers  had  been  injured 
while  using  an  automobile  in  distributing  newspapers,  the 
testimony  showing  that  he  had  been  expressly  forbidden 
to  use  the  same.  The  court  said: 

"The  principal  question  in  the  case  for  us  is  whether 
there  was  evidence  justifying  an  inference  that  the  death 
was  by  accident  arising  out  of  and  in  the  course  of  the  em- 
ployment. There  was  evidence  justifying  an  inference  that 
the  decedent  was  employed  by  the  defendant  as  a  general 
utility  man,  and  that  among  his  duties  was  the  distribution 
of  newspapers.  He  had  at  one  time  used  an  automobile 
of  the  defendant,  and  had  met  with  an  accident  which  dam- 
aged the  'machine.  The  defendant  then  borrowed  an  au- 
tomobile, and  its  president  and  one  of  his  sons,  who  was  in 
its  employ,  both  forbade  decedent  to  use  the  car.  Never- 
theless he  used  it  frequently  to  distribute  the  newspapers. 
There  is  no  evidence  that  anyone  except  the  president  had 
authority  to  authorize  its  use ;  but  the  use  was  so  frequent 
and  so  public  that,  if  there  was  nothing  more  in  the  case, 
the  trial  judge  would  have  been  justified  in  finding  that  the 
decedent  was  authorized  to  use  it  notwithstanding  the  pro- 
hibition. The  difficulty  is  that  both  the  president  and  his 
son  testified  that  the  decedent  had  been  told  not  to  use  the 
car  on  the  day  the  present  accident  happened.  The  son  in 
particular  told  him,  just  before  he  went  out,  to  let  the  car 
alone.  There  is  no  conflicting  evidence  on  this  point,  and, 
if  these  witnesses  are  to  be  believed,  the  decedent  took  the 
car  on  the  occasion  when  the  accident  happened  in  disobedi- 
ence of  express  orders  just  received.  If  there  was  author- 
ity to  use  it  before,  there  was  a  revocation." 

•     A  newspaper  company  had  a  rule  prohibiting  em- 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT         129 

ployees  from  going  on  the  roof  for  fresh  air.  The  rule  was 
not  enforced  and  an  employee  fell  from  the  roof  and  was 
killed.  It  was  held  that  the  injury  occurred  in  the  course 
of  employment.  In  re  Von  Ette  111  N.  E.  696,  223  Mass. 
56. 

For  note  on  disobedience  of  rules  or  orders  see  8  N.  C. 
C.  A.  889-905;  12  N.  C.  C.  A.  469-497. 

§  118.  Injury   Developing   During   Treatment   As   One   In 
Course  of  Employment. 

In  Newcomb  v.  Albertson  85  N.  J.  Law  435,  89  Atl. 
928,  William  E.  Albertson  entered  a  petition  against  Lev- 
erett  Newcomb  under  the  workmen's  compensation  act. 
Judgment  was  rendered  for  the  petitioner  in  the  court  of 
common  pleas  of  Cumberland  County,  and  the  case  was 
taken  up  on  certiorari,  when  the  judgment  of  the  lower 
court  was  affirmed. 

Albertson  was  employed  as  a  chauffeur  and  sustained 
a  fracture  of  the  arm  because  of  the  crank  of  the  automo- 
bile "back-firing."  While  under  treatment  in  the  hospital, 
where  he  went  with  the  acquiescence  of  the  employer,  an 
abscess  of  the  thumb  developed,  caused  by  an  unpadded 
splint.  Ankylosis  of  the  thumb  followed,  and  this  in  turn 
caused  injury  to  the  first  two  fingers.  In  deciding  that 
these  injuries  arose  in  the  course  of  the  employment,  Judge 
Swayze,  who  delivered  the  opinion  of  the  court,  said: 

"Section  11  of  the  workmen's  compensation  act  (P.  L., 
p.  136)  provides  for  compensation  for  personal  injuries  to 
an  employee  by  accident  arising  out  of  and  in  the  course 
of  his  employment.  The  defendant  expressly  confines  his 
argument  to  the  award  of  compensation  for  the  injury  to 
the  thumb  and  two  fingers.  The  only  question  for  us  is 
whether  those  injuries  were  due  to  the  accident.  The  ques- 
tion is  not,  strictly  speaking,  whether  the  accident  was  the 
proximate  cause  of  the  ankylosis  of  the  thumb,  or  whether 
the  infection  was  the  natural  result  of  the  accident." 

Clover  v.  Hughes  3  B.  W.  C.  C.  275  was  then  quoted, 
in  which  it  was  said : 


130  MANUAL  OF  COMPENSATION  LAW 

"It  seems  to  me  enough  if  it  appears  that  the  employ- 
ment is  one  of  the  contributing  causes  without  which  the 
accident  which  actually  happened  would  not  have  hap- 
pened, and  if  the  accident  is  one  of  the  contributing  causes 
without  which  the  injury  which  actually  followed  would 
not  have  followed." 

Continuing,  the  court  said: 

"In  the  present  case  it  is  said  that  the  chain  of  caus- 
ation is  broken  because  the  infection  was  due  to  the  fail- 
ure of  the  physician  to  take  proper  precautions.  There  is 
no  finding  to  that  effect,  and  the  evidence  is  not  before  us. 
We  can  not  assume  that  the  infection  could  be  caused  only 
by  the  negligence  of  the  physician,  and  it  is  therefore  unnec- 
essary to  decide  whether  such  negligence  would  amount  to 
such  a  break  in  the  chain  of  causation  that  the  employer 
would  not  be  liable.  We  think  that  the  trial  judge  was  right 
in  finding  that  the  injury  in  fact  resulted  from  the  accident 
and  in  holding  the  employer  liable." 

§  119.  Employee  Warming  Himself  Between  Cars  In  Leis- 
ure Time. 

In  Northwestern  Iron  Co  v.  Industrial  Comm.  160  Wis. 
633,  152  N.  W.  416,  the  facts  were:  The  company  manu- 
factures iron  briquettes,  and  these  are  run  out  in  small 
dump  cars  into  the  yard,  where  it  was  the  duty  of  the  in- 
jured employee  to  dump  the  cars,  move  them  onto  a  return 
track,  and  pick  up  any  briquettes  which  had  fallen  off  the 
cars.  A  car  usually  came  out  every  15  minutes,  and  the 
men  had  about  5  minutes'  leisure  between  trips.  The  in- 
jury occurred  at  about  half  past  ten  on  a  cold  night,  and 
the  employee  was  caught  between  two  cars,  while  either 
picking  up  briquettes  or  warming  himself  by  the  car  of 
heated  briquettes  which  had  last  come  out.  The  court  said : 

"If  we  credit  the  claimant's  own  story,  there  is  no  ques- 
tion about  his  right  to  compensation,  because  he  was  pick- 
ing up  briquettes  at  the  time  the  second  car  came  from  the 
kiln  and  struck  him.  The  commission,  however,  did  not 
decide  whether  the  claimant  or  Vignovich  told  the  truth, 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          131 

but  held  that  in  either  case  compensation  must  be  paid; 
hence  we  must  consider  the  case  on  the  assumption  that 
the  story  told  by  Vignovich  is  true.  This  story  is  in  ef- 
fect that,  the  night  being  cold,  they  blocked  a  car  as  it 
came  out  and  sat  down  on  the  track  in  front  of  it  to  get 
warm  from  the  heat  of  the  briquettes,  which  were  just  out 
of  the  kiln;  that  in  a  few  minutes  he  left  claimant  lying 
on  the  track  in  fronit  of  the  car  and  went  over  to  his  own 
track  25  feet  away,  and  some  minutes  later  heard  claimant 
holler,  and  came  over  and  found  him  caught  between  the 
cars.  The  only  reasonable  inference  from  this  testimony 
seems  to  be  that  the  claimant,  instead  of  at  once  proceeding 
to  pick  up  the  fallen  briquettes,  dump  the  car,  and  thus  pre- 
pare to  receive  the  next  car,  blocked  the  car,  and  proceeded 
to  sit  down  or  lie  down  in  front  of  it  in  order  to  get  warm, 
and  was  there  caught  by  the  next  car,  either  while  he  was 
engaged  in  getting  warm  or  while  he  was  picking  up  bri- 
quettes after  he  had  got  warm.  This  would  be  good  ground 
upon  which  to  find  the  claimant  negligent,  but  negligence 
does  not  prevent  compensation. 

Clearly  this  testimony  does  not  show  that  the  injury 
was  intentionally  self-inflicted;  hence  the  only  question  is, 
does  it  show  that  at  the  time  of  the  accident  the  claimant 
was  not  performing  service  growing  out  of  or  incidental 
to  his  employment?  We  think  not.  The  man's  duties  in- 
volved periods  of  leisure  during  which  apparently  he  was 
expected  to  kill  time  as  best  he  might,  with  no  specific  di- 
rection as  to  what  he  should  do  or  where  he  should  wait; 
the  night  was  cold,  and  he  put  off  dumping  the  car  until  he 
could  warm  himself  from  its  heated  contents;  to  say  that 
in  so  doing  he  had  left  the  master's  employment,  was  pur- 
suing his  own  private  purposes,  and  doing  something  for- 
eign to  the  work  he  was  employed  to  do  is  illogical  to  a  de- 
gree. To  protect  himself  from  undue  and  unnecessary 
exposure  to  the  cold  was  a  duty  he  owed  his  master  as  well 
as  himself,  and  it  does  not  follow  that  he  left  his  master's 


132  MANUAL  OF  COMPENSATION  LAW 

employment  because  he  negligently  allowed  the  second  car 
to  run  into  him  while  he  was  warming  himself." 

§  120.  Workman  Seeking  Shelter  From  Storm.      , 

In  Moore  v.  Lehigh  Valley  R.  R.  Co.,  169  App.  Div.  177, 
154  N.  Y.  Supp.  620,  Ralph  R.  Moore  was  awarded  com- 
pensation against  the  railroad  company  named  for  injuries 
sustained  in  its  employ,  and  an  appeal  was  taken.  The  com- 
pany owned  and  operated  a  railroad  between  points  in  New 
Jersey  and  New  York,  and  telegraph  and  telephone  lines 
along  its  route.  The  employee  was  assisting  in  erecting 
a  new  line  of  poles  and  wire  at  a  place  where  ijt  was  de- 
sired to  change  the  location  of  them.  On  July  23,  1914,  a 
violent  rainstorm  arose  during  working  hours.  Several 
of  the  men  went  under  a  tree  until  it  no  longer  afforded 
protection,  when  some  of  them  went  into  a  paper  mill;  but 
there  being  no  more  room  in  it,  Moore,  with  others,  went 
under  cars  standing  on  a  switch,  about  one-fourth  mile 
from  where  they  had  been  working.  No  shelter  was  fur- 
nished by  the  company  for  such  occasions,  nor  was  there 
any  rule  of  the  company  in  regard  to  the  matter;  but  it 
was  customary  for  the  men  to  find  shelter  where  they  could, 
and  no  deductions  were  made  from  their  wages  for  time 
lost  on  other  occasions  nor  on  this  one. 

While  the  employee  was  sitting  under  a  car,  an  engine 
moved  the  cars.  He  was  struck  upon  the  forehead  by  a 
projection  of  the  car  and  fell  over,  and  both  legs  were  cut 
off. 

In  discussing  the  question  whether  the  occurrence  was 
an  accident  arising  out  of  and  in  the  course  of  employment, 
the  English  and  American  cases  were  gone  into  quite  fully, 
and  the  court,  which  concluded  that  this  was  an  accident, 
and  within  the  language  of  the  statute,  and  which  affirmed 
the  award,  said  in  part: 

"That  the  injury  was  sustained  by  claimant  during  the 
course — that  is  the  period,  or  time,  or  extent — of  the  em- 
ployment is  not  seriously  disputed  by  the  defendant;  but 
the  defendant  strenuously  contends  that  the  injury  did  not 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT         133 

arise  out  of  the  employment.  It  was  not  only  customary 
that  the  claimant  should  seek  shefter  from  the  storm,  but 
doing  so  was  not  a  remote,  but  a  necessary,  and  unquestion- 
ably frequent,  incident  of  his  employment  during  the  sum- 
mer months.  Had  he  taken  shelter  in  the  paper  mill,  and 
the  roof  fallen  in,  or  the  floor  given  way,  and  he  been  ac- 
cidentally injured,  he  would  have  been  entitled  to  the  bene- 
fit of  the  compensation  law.  Whether  a  place  in  a  stone 
crusher  being  operated  by  machinery,  or  under  a  car  stand- 
ing upon  a  switch,  was  the  safer  place,  does  not  appear. 
The  four  linemen  chose  places  under  the  cars.  However, 
assuming  that  the  place  under  the  car  was  the  more  dan- 
gerous, the  fact  that  the  plaintiff's  judgment  led  him  to 
choose  it,  and  that  he  was  injured  there,  does  not  bar  him 
from  the  operation  of  the  act.  Contributory  negligence 
furnishes  no  ground  of  defense.  The  compensation  law 
says  that  the  employer  shall  provide  compensation  'without 
regard  to  fault  as  a  cause  of  such  injury.'  The  risk  of  ac- 
cidental injury  was  incidental  to  the  claimant  seeking  and 
obtaining  shelter,  and  to  his  employment,  and  was  fairly 
within  the  contemplation  of  both  employer  and  employee. 
The  act  of  seeking  and  obtaining  shelter  arose  out  of — 
that  is,  was  within  the  scope  or  the  sphere  of — his  employ- 
ment, and  was  a  necessary  adjunct  and  an  incident  to  his 
engaging  in  and  continuing  such  employment." 

§  121.  Truck  Driver  Putting  Up  a  Horse. 

In  Smith  v.  Price  et  al.  168  App.  Div.  421,  153  N".  Y. 
Supp  221,  the  deceased,  was  employed  in  driving  a  truck  at 
Cortland,  N.  Y.,  and  was  putting  up  his  horse  in  the  stall 
when  it  jumped  and  squeezed  him  against  the  side  of  the 
stall,  causing  his  death.  The  court  held  that  this  part  of 
the  duty  was  included  in  the  employment  designated  in  the 
law  under  group  41,  saying  in  part: 

"The  benefit  of  the  act  is  not  limited  to  the  actual  time 
that  the  horse  is  moving  or  that  the  employee  is  upon  the 
truck.  It  covers  every  injury  or  death  received  in  the 
course  of  the  employment.  The  loading  and  unloading  of  his 


134  MANUAL  OF  COMPENSATION  LAW 

truck,  hitching  and  unhitching  his  horse  to  the  truck,  feed- 
ing and  caring  for  his  horse,  are  a  part  of  the  employment 
of  operating  the  truck,  and  are  fairly  within  the  provisions 
of  the  law." 

§  122.  Cleaning  a  Motorcycle  Used  In  Employer's  Business. 

In  Kingsley  v.  Donovan  et  al.  169  App.  Div.  828,  155 
N.  Y.  Supp.  801,  Harry  H.  Kingsley  proceeded  against  his 
employer,  William  F.  Donovan,  and  the  insurer,  for  com- 
pensation for  the  loss  of  the  distal  phalanges  of  the  first 
and  second  fingers  of  his  right  hand.  While  cleaning  the 
clutch  of  his  motorcycle  the  fingers  were  caught  in  the 
chain  guard,  and  portions  of  them  taken  off.  The  motor- 
cycle was  owned  by  the  employee,  who  used  it  in  riding 
to  and  from  his  work,  and  occasionally  in  the  business  of 
the  employer.  The  court,  with  one  judge  dissenting,  af- 
firmed an  award  of  the  compensation  commission,  Judge 
Kellogg  saying: 

"The  appellants  contend  that  the  accident  was  not  one 
arising  out  of  and  in  the  course  of  employment.  There  is 
some  evidence  tending  to  prove  those  facts,  and  under  the 
workmen's  compensation  law  the  decision  of  the  commis- 
sion is  conclusive  upon  the  facts.  Clearly,  if  the  bicycle  was 
only  used  for  the  convenience  of  the  claimant  in  bringing 
him  to  and  from  his  place  of  work,  the  case  would  not  be 
within  the  act.  But  the  evidence  shows  that  from  time  to 
time  it  was  used  in  the  business  of  going  to  and  from  the 
work  off  the  premises,  and  that  at  other  times,  when  it  had 
been  cared  for  during  working  hours,  no  question  had  been 
raised  by  the  employer.  It  could  not  be  used  in  the  busi- 
ness unless  kept  in  proper  condition.  The  fact  that  the 
workman  was  engaged  upon  it  near  the  place  of  business 
and  during  business  hours,  and  that  it  was  frequently  used 
in  the  business,  do  not  make  the  findings  of  the  commission 
unreasonable." 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          135 

§  123.      General  Illustrations  Concerning  Injuries  Arising 
Out  of  and  In  the  Course  of  Employment. 

Whether  or  not  an  injury  arises  out  of  and  in  the  course 
of  employment  is  of  primary  importance,  because  this  fact 
does  not  -necessarily  follow  when  the  relation  of  employer 
and  employee  has  been  established.  The  field  covered  by 
the  decisions  on  this  subject  is  so  broad  that  it  is  impossible 
in  a  work  of  this  sort  to  treat  every  phase  of  it  exhaustive- 
ly. Under  this  heading  are  gathered  some  interesting  de- 
cisions involving  in  a  general  way  the  question  whether  the 
accident  arose  "out  of  and  in  the  course  of  the  employment." 

In  Nisbet  v.  Rayne  &  Burn  (Eng.),  2  K.  B.  689,  3  N.  C. 
C.  A.  268,  it  was  held  that  the  murder  of  a  cashier  while 
traveling  on  a  railroad  train  carrying  the  pay  roll  of  his 
employers  was  an  accident  arising  out  of  employment. 

In  McLauchlan  v.  Anderson,  48  Scot.  L.  R.  349,  4  B.  W. 
C.  C.  376,  a  driver  let  his  pipe  fall  and  in.  trying  to  catch 
it,  fell  from  his  seat  and  under  the  wheels  of  the  wagon  he 
was  driving.  The  accident  was  held  to  have  arisen  out  of 
employment  and  in  the  course  thereof. 

Likewise  the  drowning  of  a  servant  in  the  attempt  to 
save  the  life  of  a  fellow  servant.  Matthews  v.  Bedworth, 
1  W.  C.  C.  124  (Eng.),  For  note  on  drowning  as  an  acci- 
dent arising  out  of  and  in  the  course  of  employment,  see  12 
N.  C.  C.  A.  64-83. 

An  employee  after  completing  his  day's  work  and  while 
still  on  his  employer's  premises  was  injured  while  going 
from  the  locality  where  he  was  doing  his  work  to  the  office 
of  the  paymaster  to  obtain  his  pay,  the  traversing  of  that 
portion  of  the  premises  on  which  the  injury  occurred  not 
being  forbidden  by  the  rules  or  directions  of  the  employer 
and  the  injury  not  being  purposely  inflicted,  it  was  held 
that  the  injury  was  sustained  in  the  course  of  the  employ- 
ment and  the  injured  employee  was  entitled  to  compensa- 
tion. Re  R.  B.  Phillips  Claim  No.  3514,  Ohio  Indus.  Ace. 
Bd.,  May  5th,  1913.  7  N.  C.  C.  A.  (note),  429. 

A  miner  fell  while  passing  a  chute  in  the  mine.    A  few 


136  MANUAL  OF  COMPENSATION  LAW 

minutes  later  he  was  demonstrating  to  a  fellow  workman 
and  while  so  demonstrating  he  fell  again.  It  was  contended 
that  the  second  fall  caused  the  injury  and,  that,  therefore, 
it  was  not  received  in  the  course  of  employment.  Compen- 
sation was  awarded.  Mileta  v.  Newport  Mining  Co.,  Mich. 
Indus.  Ace.  Bd.,  July,  1913.  For  note  on  injuries  caused 
by  the  employee's  gross  carelessness  or  foolhardiness  as 
accidents  arising  out  of  and  in  the  course  of  employment 
see  12  N.  C.  C.  A.  1032-1037. 

The  duties  of  an  insurance  agent  required  him  to  go 
from  door  to  door  making  collections  of  premiums,  while 
doing  this  he  fell  down  a  stairway  and  was  injured.  It  was 
held  that  the  injury  arose  out  of  his  employment.  Refuge 
Assurance  Co.  v.  Millar,  49  Scot  L.  R.  67,  5  B.  W.  C.  C.  522. 

Where  a  miner  had  been  instructed  not  to  fire  a  blast, 
but  did  so  anyway,  it  was  held  that  the  injury  did  not  arise 
out  of  employment.  Kerr  v.  William  Baird  &  Co.,  Ltd.,  48 
Scot.  L.  R.  646,  4  B.  W.  C.  C.  397. 

Likewise  where  a  miner  continued  work  for  an  hour 
after  he  was  warned  that  blasting  was  to  commence.  Tray- 
nor  v.  Addie  &  Sons,  48  Scot.  L.  R.  820,  4  B.  W.  C.  C.  357. 

Also  when  a  miner  was  injured  while  riding  upon  a  car- 
riage upon  which  he  had  been  forbidden  to  ride.  Kane  v. 
Merry  &  Cunningham,  Ltd.,  48  Scot.  L.  R.  430,  4  B.  W.  C. 
C.  379. 

Injuries  received  by  a  driver  while  delivering  material 
to  the  home  of  a  fellow  employee  as  an  accommodation  to 
him,  did  not  arise  out  of  employment  nor  in  the  course  of  it. 
Werner  v.  Rising  Sun  Brewing  Co.,  37  N.  J.  L.  J.  364,  9 
N.  C.  C.  A.  (note) ,  648.  For  note  on  accidents  to  employees 
engaged  in  operating  vehicles  as  arising  out  of  and  in  the 
course  of  employment,  see  12  N.  C.  C.  A.  174-199. 

The  same  was  held  where  an  employee,  while  delivering 
hardware,  stopped  to  assist  in  getting  up  a  fallen  horse 
which  fell  on  him  and  broke  the  employee's  leg.  In  re 
Verkamp,  1  Ohio  Ind.  Comm.  Bui.  123,  9  N.  C.  C.  A;  (note) , 
649r 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          137 

A  laborer  in  a  sawmill  was  told  several  times  to  throw 
fuel  into  a  furnace  on  the  side  away  from  a  revolving  saw. 
He  chose  to  act  contrary  to  instructions  and  was  injured  by 
coming  in  contact  with  the  saw.  It  was  held  that  this  in- 
jury did  not  arise  out  of  employment.  Schelf  v.  Kishpaugh, 
37  N.  J.  L.  J.  173,  9  N.  C.  C.  A.  (note)  652. 

It  was  also  held  where  a  workman  employed  to  do  work 
by  hand  tried  to  rig  up  a  time  saving  device  by  throwing  a 
rope  over  a  revolving  shaft.  Plumb  v.  Cobden  Flour  Mills 
Co.,  6  B.  W.  C.  C.  245,  9  N.  C.  C.  A.  (note),  655.  For  note 
on  injury  to  employee  during  the  performance  of  an  act 
for  his  own  purpose  or  convenience  as  resulting  from  an  ac- 
cident arising  out  of  and  in  the  course  of  employment,  see 
12  N.  C.  C.  A.  891-907. 

Where  a  servant  drank  a  poisonous  fluid  while  at  work, 
believing  he  was  drinking  water,  the  injuries  received  were 
held  to  have  arisen  out  of  and  in  the  course  of  the  employ- 
ment;, within  the  meaning  of  the  West  Virginia  Act.  Archi- 
bald v.  Ott  87  S.  E.  791. 

For  further  examples  of  cases  having  to  do  with  acci- 
dents arising  out  of  and  in  the  course  of  employment,  see 
note  L.  R.  A.  1916A  (American  Cases),  232-242  (English 
Cases),  40-72.  See  also  5  N.  C.  C.  A.  (note),  985-991,  9 
N.  C.  C.  A.  (note),  647-665,  and  cross-references. 

For  note  on  whether  or  not  accidents  to  employees  while 
not  actively  employed,  but  subject  to  call  arose  out  of  and  in 
the  course  of  employment,  see  12  N.  C.  C.  A.  243-253. 

In  the  following  recent  cases  it  was  held  that  the  injury 
arose  out  of  and  in  the  course  of  the  employment  within 
the  act: 

In  re  Fisher,  108  N.  E.  361,  220  Mass.  581 ;  Voorhees  v. 
Smith-Schoonmaker  Co.,  92  Atl.  280,  86  N.  J.  L.  500,  7  N.  C 
C.  A.  646 ;  State  v.  District  Court  of  Meeker  Co.,  150  N.  W 
623,  128  Minn.  221 ;  State  v.  District  Court  of  St.  Louis  Co.. 
151  N.  W.  912  (Minn.),  129  Minn.  176;  Musik  v.  Erie  R. 
Co.  86  N.  J.  L.  695,  92  Atl.  1087 ;  Northwestern  Iron  Co.  v. 
Ind.  Comm.  152  N.  W.  416,  160  Wis.  633;  Fitzgerald  v. 


138  MANUAL  OF  COMPENSATION  LAW 

Lozier  Motor  Co.,  154  N.  W.  67,  187  Mich.  660;  State  v. 
District  Court  of  Ramsey  Co.,  153  N.  W.  119,  129  Minn. 
502,  L.  R.  A..1916A  344,  9  N.  C.  C.  A.  129;  Jillson  v.  Ross, 
94  A.  717  (R.  I.) ;  In  re  Savage,  110  N.  E.  283,  222  Mass. 
205;  Pierce  v.  Boyer-Van  Kuran  Lumber  &  Coal  Co.,  156 
N.  W.  509,  99  Neb.  321 ;  De  Fazio's  Estate  v.  Goldschmidt 
Detirining  Co.,  95  A.  549,  affirming,  88  Atl.  705,  4  N.  C.  C. 
A.  716 ;  Ri&t  v.  Larkin  &  Sangster,  156  N.  Y.  S.  875,  171 
App.  Div.  71 ;  Federal  Rubber  Mfg.  Co.  v.  Havolic,  156  N. 
W.  143,  162  Wis.  341 ;  In  re  Doherty,  109  N.  E.  887,  222 
Mass.  98;  In  re  Von  Ette,  111  N.  E.  697,  223  Mass.  56; 
Cline  v.  Studebaker  Corp'n.,  155  N.  W.  519,  L.  R.  A.  1916, 
C.  1139  (Mich.) ;  Kingsley  v.  Donovan,  155  N.  Y.  S.  801, 
169  App.  Div.  828. 

§  124.  Burden  of  Proof. 

In  Hills  v.  Blair  et  al.,  182  Mich.  20,  148  N.  W.  243,  7 
N.  C.  C.  A.  409,  the  court  stated  the  general  rule  as  follows : 
"It  is  well  settled  that  the  burden  rests  upon  the  one  claim- 
ing compensation  to  show  by  competent  testimony,  direct  or 
circumstantial,  not  only  the  fact  of  an  injury,  but  that  it 
occurred  in  connection  with  the  alleged  employment,  and 
both  arose  out  of  and  in  the  course  of  the  service  at  which 
the  party  was  employed." 

In  McCoy  v.  Michigan  Screw  Co.,  180  Mich.  454,  147  N. 
W.  572,  L.  R.  A.  1916A,  323,  the  court  said :  "The  burden 
of  furnishing  evidence  from  which  the  inference  can  be 
legitimately  drawn  that  the  injury  arose  'out  of  and  in  the 
course  of  employment'  rests  upon  the  claimant.  Bryant  v. 
Fissel,  84  N.  J.  L.  72,  86  Atl.  458,  3  N.  C.  C.  A.  585.  Ruegg 
on  Workmen's  Compensation,  p.  343,  says :  'If  an  inference 
favorable  to  the  applicant  can  only  be  arrived  at  by  a 
guess,  the  applicant  fails.  The  same  thing  happens  when 
two  or  more  inferences  equally  consistent  with  the  facts 
arise  from  them.' " 

It  is  well  established  that  the  burden  is  on  the  one 
claiming  compensation  to  establish  by  sufficient  evidence 
that  an  accident  or  injury  both  arose  "out  of"  and  "  in  the 


OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT          139 

course  of"  employment.  In  re  Von  Ette,  223  Mass.  56, 
111  N.  E.  697;  Englebretsen  v.  Ind.  Ace.  Comm.  170  Cal. 
793,  151  Pac.  421,  10  N.  C.  C.  A.  545 ;  Dragovich  v.  Iroquois 
Iron  Co.,  269  111.  478,  109  N.  E.  999,  10  N.  C.  C.  A.  475 ;  In 
re  Savage,  222  Mass.  205,  110  N.  E.  283. 

In  the  last  named  case  the  court  said: 

"Under  the  workmen's  compensation  act,  the  findings  of 
the  industrial  accident  board  are  equivalent  to  the  verdict 
of  a  jury  or  the  findings  of  a  judge  and  are  not  to  be  set 
aside  if  there  is  any  evidence  to  support  them.  .  .  . 
The  industrial  accident  board  has  found  that:  'The  em- 
ployee, Joseph  W.  Savage,  did  not  receive  a  personal  injury 
arising  out  of  and  in  the  course  of  his  employment;  that 
his  death  occurred  by  reason  of  his  unexplained  absence 
from  the  car  which  he  was  engaged  in  unloading;  that  his 
presence  on  the  railroad  track  was  unnecessary  under  the 
circumstances  and  subjected  him  to  a  needless  risk  of 
injury  from  moving  railroad  trains;  and  that,  therefore, 
the  widow,  Mrs.  Eva  Savage,  is  not  entitled  to  compensa- 
tion under  the  statute.' 

The  plaintiff  is  not  entitled  to  recover  under  this  stat- 
ute, unless  the  injury  arose  out  of  and  in  the  course  of  her 
husband's  employment;  and  to  establish  these  facts  the 
burden  of  proof  rests  upon  her.  It  is  not  enough  'to  show 
a  state  of  facts  which  is  equally  consistent  with  no  right 
of  compensation  as  it  is  with  such  right.'  There  being  no 
evidence  to  show  that  the  fatality  was  caused  by  her  hus- 
band's employment  or  that  it  occurred  while  he  was  engaged 
therein,  she  can  not  recover." 

§  125.  May  Be  Established  By  Circumstantial  Evidence. 

The  case  of  Muzik  v.  Erie  R.  R.  Co.,  85  N.  J.  Law  131, 
88  Atl.  248,  affirmed,  86  N.  J.  Law  695,  92  Atl.  1087,  Ann. 
Gas.  1916A  140,  rested  on  the  question  as  to  whether  the 
fact  that  the  death  of  the  employee  arose  in  the  course 
of  his  employment  must  be  proved  by  direct  evidence,  or 
would  be  inferred  from  the  circumstances  which  existed  in 
the  case.  The  court  said: 


140  .       MANUAL  OF  COMPENSATION  LAW 

"The  first  point  made  by  the  defendant  is  that  there  is 
no  evidence  that  Muzik's  death  was  caused  by  an  accident  in 
the  course  of  his  employment.  It  is  true  that  no  direct 
evidence  of  these  facts  was  produced.  The  man  was  found 
after  the  train  had  gone  out,  some  3  or  4  feet  from  the  rail- 
road, lying  with  his  feet  toward  the  track,  with  an  injury 
in  his  head,  and  died  shortly ;  the  case  being  one  of  a 
broken  neck. 

The  Bergen  County  court  of  common  pleas  found  that 
the  deceased  came  to  his  death  by  accident,  while  in  the 
railroad's  employ,  and  in  the  course  of  it.  I  do  not  think 
that  we  can  question  this  finding.  The  facts  shown  clearly 
indicate  that  .the  deceased  was  struck  by  the  train  after 
he  had  given  the  waybills,  in  pursuance  of  his  duty,  as  such 
employee,  to  the  train  agent;  and  this,  of  course,  would 
be  while  in  the  course  of  his  employment." 

A  workman  was  found  unconscious.  It  was  held  that 
the  finding  of  the  board  that  he  came  to  his  injuries  through 
an  accident  in  the  course  of  his  employment  was  justified. 
Heileman  Brewing  Co.  v.  Shaw,  154T  N.  W.  631,  161  Wis. 
433. 


CHAPTER  IV 

DISABILITY 

Section. 

126.  In  general. 

127.  Waiting  period. 

128.  Kinds  of  disability  denned. 

129.  Factors  m  earning  ability. 

130.  A  nervous  or  hysterical  condition  as  disability. 

131.  Temporary  total  disability. 

132.  Inability  to  procure  work. 

133.  Temporary  partial  disability. 

134.  Permanent  total  disability. 

135.  Incapacity  for  work. 

136.  Loss  of  second  eye  where  first  was  lost  previously. 

137.  Loss  of  second  hand  where  first  was  lost  previously. 

138.  Failing  health  as  affecting  total  disability. 

139.  Disability  for  particular  work — not  total. 

140.  Permanent  partial  disability. 

141.  Injuries  other  than  scheduled. 

142.  Impairment  of  a  member  not  "loss." 

143.  Permanent    partial    disability    though   earning   power   unim- 

paired. 

144.  Concurrent  disability  from  different  injuries. 

145.  Injuries  to  foot  or  leg. 

146.  Loss  of  hand  or  arm. 

147.  Injury  to  fingers. 

148.  Injuries  to  eyes. 

149.  Injuries  to  the  ear. 

150.  Disfigurement. 

§  126.  In  General. 

The  acts  of  the  various  States  are  generally  very  specific 
as  to  what  constitutes  disability,  whether  it  be  temporary 
or  permanent.  Most  of  them  have,  in  addition,  definite 
schedules  of  injuries  for  which  certain  periods  of  disability 
are  thereby  determined.  It  is  impracticable  to  attempt  to 
compare  the  provisions  of  the  various  acts  on  this  subject. 
To  do  so  would  be  confusing  rather  than  helpful.  The  only 


142  MANUAL  OF  COMPENSATION  LAW 

absolute  guide  as  to  what  constitutes  disability  is  the  word- 
ing of  the  act  in  question.  However,  the  decisions  of  the 
various  States  may  be  of  considerable  assistance  in  arriving 
at  the  meaning  of  the  act  of  any  particular  State.  What  is 
said  in  this  chapter  concerning  disability  is  said  with  the 
above  considerations  in  mind. 

§  127.  Waiting  Period. 

Practically  every  act  passed  has  provided  that  compen- 
sation should  not  begin  until  the  expiration  of  a  certain 
period.  In  almost  every  case  two  weeks  has  been  thought 
to  be  the  proper  "waiting  period."  Except  for  the  medical 
attention  which  begins  immediately  after  the  injury  the 
waiting  period  is  generally  not  compensated  for,  but  in 
some  States,  as  in  Arizona,  Michigan,  Nevada  and  Wis- 
consin, if  the  disability  continues  for  a  certain  number  of 
weeks,  compensation  dates  back  to  the  day  of  the  injury. 
In  Illinois  and  Minnesota  the  waiting  period  does  not  apply 
in  cases  of  total  disability  and  in  Maryland  it  is  then  re- 
duced from  two  weeks  ,to  one  week.  Oregon  and  Washing- 
ton have  no  waiting  periods.  The  purpose  of  this  is  to 
make  it  unattractive  for  workmen  to  feign  injuries  or  to 
intentionally  injure  themselves  in  order  to  collect  compen- 
sation. While  such  actions  are  unusual,  there  are  always 
some  workmen  of  a  lower  order  who  would  take  advantage 
of  the  employer,  were  it  not  for  a  provision  like  this  which 
removes  the  temptation. 

Where  the  employer  and  employee  have  elected  to  come 
within  the  provisions  of  the  compensation  law,  that  law 
is  exclusive  of  all  other  remedies.  McRoberts  v.  National 
Zinc  Co.,  93  Kan.  364,  144  Pac.  247.  Therefore,  no  claim 
of  any  kind  can  be  made  for  injuries  which  do  not  disable 
the  workman  for  a  longer  time  than  the  waiting  period 
unless  the  act  specifically  permits  such  a  claim. 

§  128.  Kinds  of  Disability  Defined. 

There  are  four  kinds  of  disability  under  the  acts  gen- 
erally, for  which  compensation  is  payable,  (1)  temporary 


DISABILITY  143 

total,  (2)  permanent  .total,  (3)  temporary  partial,  (4)  per- 
manent partial. 

1.  Temporary  total  disability  is  that  which  incapacitates 
one  for  any  work  for  a  limited  time  after  which  regular 
work  can  be  resumed  either  with  no  further  disability  or 
possibly  with  a  degree  of  temporary  partial  or  permanent 
partial  disability. 

2.  Permanent  total  disability  is  that  which,  in  theory, 
completely  incapacitates  one  from  all  work  for  all  time, 
either  actually  or  by  direct  statutory  provision. 

3.  Temporary  partial  disability  is  that  which  partly  in- 
capacitates one  from  work  for  a  limited  time  after  which 
regular  work  can  be  resumed.    This  disability  may  be  orig- 
inal or  it  may  follow  a  period  of  temporary  total  disability, 
or  it  may  be  followed  by  any  of  the  other  three  degrees  of 
disability. 

4.  Permanent  partial  disability  is  that  which,  in  theory, 
partly  incapacitates  one  from  full  work  for  all  time  and 
may  follow  a  period  of  temporary  total  or  temporary  partial 
disability. 

§  129.  Factors  In  Earning  Ability. 

In  Harper's  Workmen's  Compensation,  p.  161,  §  144, 
the  author  says:  "It  has  been  well  stated  that  ability  to 
earn  wages  is  mainly  dependent  upon  the  following  factors : 
(1)  Unimpaired  functional  power  of  bodily  organs.  (2) 
Technical  knowledge  and  skill  required  to  carry  on  the 
vocation.  (3)  The  ability  of  the  individual  to  compete  in 
the  labor  market.  (Magnus  &  Wurdeman,  Visual  Eco- 
nomics, p.  26.)  Whether  incapacity  has  resulted  from  any 
accident,  by  reason  of  the  disturbance  of  any  of  these  three 
factors,  is  entirely  a  question  of  fact,  except,  of  course  in 
those  cases  of  partial  permanent  incapacity  included  in  the 
schedule  of  specific  injuries,  in  which  cases  incapacity  is 
conclusively  presumed.  Leeds  &  Liverpool  Canal  Co.  v. 
Hesketh  (1910),  3  B.  W.  C.  C.  303;  Furness  v.  Bennett 
(1910),  3  B.  W.  C.  C.  195;  Royman  v.  Fields  (1910),  102 
L.  T.  154,  3  B.  W.  q.  C.  123;  Smith  v.  Colliery  Co.  (1900), 


144  MANUAL  OF  COMPENSATION  LAW 

2  W.  C.  C.  121;  Dowds  v.  Bennie  (1903),  5  F  268;  Price  v. 

B.  B.  &  Co.   (1907),  2  B.  W.  C.  C.  337;  Wells  v.  Cardif 
Steam  Collieries  Co.  (1909),  3  B.  W.  C.  C.  104;  Roberts  v. 
Benham  (1910),  3  B.  W.  C.  C.  430;  Anderson  v.  Darngavil 
(1910),  S.  C.  456;  Cunningham  v.  McNaughten  &  Sinclair 
(1910),  S.  C.  980,  3  B.  W.  C.  C.  577;  O'Neil  v.  Ropner  & 
Co.  (1908),  43  Ir.  L.  T.  2,  2  B.  W.  C.  C.  334." 

§  130.  A  Nervous  or  Hysterical  Condition  As  Disability. 

In  Eaves  v,  Blaenclydach  Colliery  Co.,  Ltd.,  2  B.  W.  C. 

C.  329,  Lord  Cozens  Hardy  said:    "The  effects  of  an  acci- 
dent are  at  least  twofold:  They  may  be  merely  muscular 
effects — they  almost  always  must  include  muscular  effects 
— and  there  may  also  be,  and  frequently  are,  effects  which 
you  may  call  mental,  or  nervous,  or  hysterical.     I  cannot, 
for  the  moment,  think  which  is  the  proper  word  to  use 
in  respect  to  them.    The  effects  of  this  second  class  as  a 
rule,  arise  as  directly  from  the  accident  which  the  work- 
man suffered  as  the  muscular  effects  do;  and  it  seems  to 
me  entirely  a  fallacy  to  say  that  a  man's  right  to  compen- 
sation ceases  when  the  muscular  mischief  is  ended,  but 
the  nervous  or  hysterical  effects  still  remain." 

§  131.  Temporary  Total  Disability. 

This  applies  to  all  injuries  of  a  minor  and  temporary 
character  which  result,  for  the  time  being,  in  an  inability  to 
perform  any  of  the  regular  duties  for  a  period  longer  than 
the  waiting  period.  The  great  majority  of  claims  under 
the  acts  are  for  this  kind  of  disability. 

It  is  always  a  question  of  fact  whether  or  not  temporary 
tqtal  disability  exists  in  a  given  case.  The  temporary  dis- 
ability ceases  to  be  total  when  it  is  established  by  the  physi- 
cal facts  of  the  case  or  by  competent  medical  testimony 
that  the  physical  ability  to  earn  usual  wages  has  been 
again  restored.  It  need  not  be  completely  restored,  for 
temporary  total  disability  may  be  followed  by  a  degree  of 
partial  disability  and  while  the  injured  man  may  for  a 
time  be  unable  to  resume  his  usual  work  at  usual  wages  he 
may  be  able  to  earn  a  part  of  his  usual  wages  by  doing 


DISABILITY  145 

lighter  work  or  work  requiring  less  skill.  Utieres  v.  Otto, 
2  Cal.  Ind.  Ace.  Comm.  Dec.  652. 

In  re  Septimo,  219  Mass.  430,  107  N.  E.  63,  7  N.  C.  C. 
A.  906,  an  employee  who  received  $10  a  week  was  taken 
back  after  an  injury  at  $9  a  week.  The  court  said :  "While 
he  was  so  employed,  after  his  injuries,  the  mill,  where  he 
worked,  was  shut  down  for  three  and  five-sevenths  weeks, 
'owing  to  slackening  up  of  business.'  During  this  time  he 
received  no  wages.  The  question  in  controversy  is  whether 
he  was  entitled  to  compensation  for  the  three  and  five- 
sevenths  weeks  when  the  mill  was  closed  upon  a  total  or 
partial  incapacity  for  work."  After  stating  Jthat  the  find- 
ings of  the  commission  could  not  be  disturbed  where  there 
was  any  evidence  to  warrant  them,  the  court  continued: 
"The  insurer  contends  that  because  ,the  employee  was  em- 
ployed after  his  injury  and  paid  wages  at  the  rate  of  $9 
a  week,  a  finding  of  total  incapacity  for  work  during  the 
time  that  the  mill  was  closed  was  not  warranted.  We  do 
not  think  that  this  contention  can  be  maintained.  While 
such  employment  was  evidence  that  the  employee  was  not 
wholly  incapacitated  for  work,  yet  it  was  not  conclusive. 
The  committee  of  arbitration  found  that  it  was  probable, 
considering  his  injured  condition,  that  he  would  not  have 
been  able  to  obtain  work  or  to  earn  anything  elsewhere. 
The  record  shows  that  he  was  seriously  disabled  and  crip- 
pled." 

An  employee  attempted  to  lift  a  heavy  cement  block 
while  in  a  sitting  position.  There  was  no  external  evidence 
of  injury,  but  he  was  caused  pain  and  was  temporarily 
disabled  from  work.  It  was  held  that  he  suffered  an  acci- 
dent within  the  meaning  of  the  Wisconsin  Act.  Bystrom 
Bros.  v.  Jacobson,  155  N.  W.  919,  162  Wis.  180. 

It  was  held  in  California  that  the  board  had  no  power 
to  allow  compensation  for  additional  disability  due  to  the 
slipping  of  a  broken  bone,  unless  it  was  the  natural  result 
of  the  original  break.  Pacific  Coast  Casualty  Co.  v.  Pills- 
bury,  153  Pac.  24,  171  Cal.  319. 


146  MANUAL  OF  COMPENSATION  LAW 

§  132.  Inability  to  Procure  Work. 

The  fact  that  a  workman  has  been  unable  to  procure  any 
work  on  account  of  an  injury,  although  he  tried  diligently, 
has  been  held  to  result  in  "total  incapacity  for  work"  in 
those  jurisdictions  where  this  phrase  is  used.  There  is 
little  if  any  real  difference  between  the  meaning  of  those 
words  and  permanent  total  disability  as  generally  used. 

In  Sullivan  v.  American  Mutual  Liability  Insurance  Co., 
218  Mass.  141,  105  N.  E.  463,  L.  R.  A.  1916A  378,  5  N.  C. 
C.  A.  735,  Sullivan  lost  his  right  arm  and  after  he  was 
physically  able  to  do  work,  he  was  unable  to  procure  it.  It 
was  contended  that  his  period  of  total  disability  ended  when 
he  was  physically  able  to  earn  wages  regardless  of  whether 
or  not  he  had  actually  been  able  to  obtain  suitable  employ- 
ment. After  citing  the  English  cases  establishing  a  similar 
ruling  the  court  said:  "In  our  opinion  these  decisions  are 
correct  in  principle.  The  object  of  our  statute  was  to  give 
compensation  for  a  total  or  partial  loss  of  capacity  to  earn 
wages.  Gillen's  Case,  215  Mass.  96,  99,  L.  R.  A.  1916A 
371,  102  N.  E.  346.  If,  as  in  this  case,  the  injured  employee 
by  reason  of  his  injury  is  unable  in  spite  of  diligent  efforts 
to  obtain  employment,  it  would  be  an  abuse  of  language  to 
say  that  he  was  still  able  to  earn  money,  that  he  still  had 
a  capacity  for  work,  even  though  his  physical  powers  might 
be  such  as  to  enable  him  to  do  some  kinds  of  work,  if  prac- 
tically the  labor  market  were  not  thus  closed  ,to  him.  He 
has  become  unable  to  earn  anything ;  he  has  lost  his  capacity 
to  work  for  wages  and  to  support  himself,  not  by  reason 
of  any  change  in  market  conditions,  but  because  of  a  defect 
which  is  personal  to  himself  and  which  is  the  direct  result 
of  the  injury  that  he  has  sustained.  He  is  deprived  of  the 
benefit  which  the  statute  promises  to  him  if  he  is  told  that 
because  he  could  do  some  work  if  he  could  get  it,  he  is  not 
under  any  incapacity  for  work,  although  by  reason  of  his 
injury  he  can  obtain  no  opportunity  to  work."  This  deci- 
sion is  supported  by  the  following:  Duprey's  Case,  219 
Mass.  189,  106  N.  E.  686;  Stickley's  Case,  219  Mass.  513, 


DISABILITY  147 

107  N.  E.  350;  Septimo's  Case,  219  Mass.  430,  107  N.  E. 
63,  7  N.  C.  C.  A.  906 ;  Gorrell  v.  Battelle,  93  Kan.  370,  144 
Pac.  244.  For  further  discussion,  see  also  L.  K.  A.  1916A 
(note)  380-381 ;  5  N.  C.  C.  A.  (note)  735-741 ;  7  N.  C.  C. 
A.  (note)  906-910. 

§  133.  Temporary  Partial  Disability. 

Temporary  partial  disability  may  be  original  or  it  may 
follow  a  period  of  temporary  total,  or  be  followed  by  any 
of  the  other  three  degrees  of  disability.  If  it  is  original, 
although  the  injured  man  may  continue  at  some  kind  of 
work,  less  remunerative  than  his  usual  work,  it  is  com- 
pensable,  provided  it  continues  after  the  waiting  period. 

Some  of  the  acts  provide  specifically  to  the  effect,  that 
if  an  employee  is  injured  but  not  totally  or  permanently 
disabled  from  work,  he  is  entitled,  after  the  waiting  period, 
to  a  certain  percentage  of  the  difference  between  his  earn- 
ing power  before  and  after  the  injury  within  the  limits 
provided  as  to  amount  and  time.  See  Roberts  v.  Charles 
Wolff  Packing  Co.,  95  Kan.  723,  149  Pac.  413,  and  L.  R.  A. 
1916A  (note)  377-378. 

But  if  temporary  partial  follows  a  period  of  temporary 
total  disability  it  is  usually  provided  that  credit  must  be 
given  to  the  employer  for  the  amount  of  compensation 
already  paid  and  the  number  of  weeks  during  which  it 
has  been  paid,  as  against  the  maximum  amount  and  num- 
ber of  weeks  allowed  by  the  act. 

Whether  or  not  temporary  partial  disability  exists  is 
a  question  of  fact  to  be  determined  by  all  the  circum- 
stances of  the  case.  Gordan  v.  Evans,  1  Cal.  Ind.  Ace. 
Comm.  Dec.  94. 

§  134.  Permanent  Total  Disability. 

In  practically  all  the  States  except  Arizona,  Califor- 
nia, Indiana,  Kansas  and  New  Hampshire,  certain  definite 
injuries  are  set  forth  in  the  schedules  of  disability,  and, 
when  these  injuries  exist  total  disability  is  usually  pre- 
sumed, in  the  absence  of  direct  proof  to  the  contrary.  These 


148  MANUAL  OF  COMPENSATION  LAW 

schedules  almost  universally  include  the  loss  of  both  legs, 
both  arms,  or  one  arm  and  one  foot  and  both  eyes  and 
often,  in  addition,  complete  paralysis  of  both  arms  or  both 
legs  or  of  one  arm  and  one  leg,  and  injuries  resulting  in 
incurable  insanity  or  imbecility. 

The  amount  of  compensation  for  total  disability  and  the 
duration  of  it  vary  considerably.  In  some  States,  of  which 
California,  Colorado,  Illinois,  New  York,  Ohio,  Oregon, 
Washington  and  West  Virginia  are  examples,  compensation 
for  total  disability  continues  during  life.  But  in  almost  all 
the  other  compensation  States,  there  is  a  limitation  as  to 
the  time  for  which  it  is  to  run  or  a  maximum  amount  be- 
yond which  the  employer  is  not  liable,  and  often  a  limit 
both  as  to  time  and  amount. 

§  135.  Incapacity  for  Work. 

Whether  or  not  an  injury  totally  incapacitates  a  man 
from  performing  or  securing  work  is  a  question  of  fact 
which  must  be  determined  after  hearing  the  facts  and  com- 
petent medical  testimony.  If  a  workman  suffered  an  im- 
pairment of  functional  power  that  made  it  impossible  for 
him  to  follow  the  trade  at  which  he  was  skilled,  that  fact 
should  be  taken  into  consideration  in  arriving  at  the  de- 
gree of  permanent  partial  disability,  but  would  not  con- 
stitute total  disability.  But  it  is  clear  that  the  inability  to 
perform  any  work  because  of  injuries  resulting  from  ac- 
cident arising  out  of  and  in  the  course  of  employment  would 
be  total  disability  within  the  meaning  of  the  acts.  The  bur- 
den of  proving  such  a  condition,  outside  of  the  functional 
impairments  named  in  schedules  where  the  acts  have  them, 
rests  on  the  claimant. 

For  cases  on  "incapacity  for  work"  see  Duprey  v.  Mary- 
land Casualty  Co.,  219  Mass.  189,  106  N.  E.  686;  Gillen's 
Case,  215  Mass.  96,  102  N.  E.  346,  L.  R.  A.  1916A  371; 
Gorrell  v.  Battelle,  93  Kan.  370,  144  Pac.  244.  For  cases  on 
"inability  to  secure  work"  as  evidence  of  "incapacity  for 
work,"  see  in  re  Sullivan,  218  Mass.  141,  105  N.  E.  463,  L. 
R.  A.  1916A  378,  Duprey  v.  Maryland  Casualty  Co.  supra. 


DISABILITY  149 

§  136.  Loss  of  Second  Eye  Where  First  Was  Lost  Pre- 
viously. 

In  State  ex  rel  Garwin  v.  District  Court  of  Cass  Co.  et 
al.,  129  Minn.  156,  151  N.  W.  810,  8  N.  C.  C.  A.  1052,  John 
Garwin,  who  was  totally  blind  in  one  eye,  was  injured  while 
in  the  employ  of  J.  Neil's  Lumber  Co.,  the  sight  of  the  other 
eye  being  destroyed.  The  trial  court  awarded  him  the 
amount  designated  by  the  statute  for  permanent  partial 
disability  consisting  of  loss  of  an  eye.  He  appealed,  con- 
tending that  the  award  should  be  for  permanent  total  dis- 
ability, as  he  was  now  totally  blind.  The  court  affirmed 
the  previous  judgment,  holding  that  section  15  of  the  act 
clearly  indicates  that  in  such  cases  the  compensation  is  to 
be  for  partial  disability  only,  arid  quoting  that  section  as 
follows : 

"If  an  employee  receive  an  injury,  which,  of  itself,  would 
only  cause  permanent  partial  disability,  but  which,  com- 
bined with  a  previous  disability,  does  in  fact  cause  per- 
manent total  disability,  the  employer  shall  only  be  liable 
for  the  permanent  partial  disability  caused  by  the  subse- 
quent injury." 

In  Weaver  v.  Maxwell  Motor  Co.  186  Mich.  588,  152  N. 
W.  933,  L.  R.  A.  1916B  1276,  Charles  Weaver,  who  had  lost 
one  eye  several  years  before,  lost  the  other  by  accident 
while  in  the  employ  of  the  company  named.  The  question 
arose  as  to  the  construction  of  the  act,  whether  he  should 
be  compensated  as  for  total  disability,  or  under  the  pro- 
vision that  for  the  loss  of  an  eye  the  injured  person  should 
receive  one-half  his  weekly  wages  for  100  weeks.  The 
court  decided  that  the  latter  provision  would  apply,  and 
said: 

"Since  the  case  was  submitted  counsel  for  the  claim- 
ants has  called  the  attention  of  the  court  and  opposing 
counsel  to  the  case  of  State  ex  rel.  Garwin  v.  District  Court 
et  al  (Minn.),  151  N.  W.  910,  which  is  a  case  on  all  fours 
as  to  the  facts.  It  is  not  a  precedent  in  the  instant  case,. 


150  MANUAL  OF  COMPENSATION  LAW 

however,  because  the  Minnesota  statute  contains  language 
not  found  in  the  Michigan  statute,  reading : 

'If  an  employee  receive  an  injury,  which,  of  itself,  would 
only  cause  permanent  partial  disability,  but  which,  com- 
bined with  a  previous  disability  does  in  fact  cause  per- 
manent total  disability,  the  employer  shall  only  be  liable 
for  the  permanent  partial  disability  caused  by  the  subse- 
quent injury.' 

And  it  was  held  the  compensation  should  be  based 
upon  the  permanent  partial  disability,  and  not,  as  claimed 
by  the  appellant,  on  the  basis  of  permanent  total  disability. 

It  must  be  confessed  that  the  provisions  of  the  Michi- 
gan statute  are  so  ambiguous  as  not  to  be  free  from  doubt. 
All  its  provisions,  however,  should  be  given  effect,  if 
possible.  The  compensation  fixed  in  section  9  must  be 
based  upon  the  fact  that  the  total  incapacity  for  work  re- 
sulted from  the  injury.  Section  10  deals  with  the  partial 
incapacity  for  work  resulting  from  the  injury,  and  fixes 
the  compensation,  and  then  proceeds: 

Tor  the  loss  of  an  eye  fifty  per  centum/  etc.  "The  loss 
.  .  .  or  both  eyes  .  .  .  shall  constitute  total  and  per- 
manent disability/ 

In  the  instant  case  the  loss  of  the  first  eye  was  a  par- 
tial disability  for  which,  if  our  workmen's  compensation 
law  had  been  in  existence,  the  then  employer  would  have 
been  liable,  and  for  which  disability  the  present  employer 
was  in  no  degree  the  cause.  The  loss  of  the  second  eye, 
standing  by  itself,  was  also  a  partial  disability,  and  of  it- 
self did  not  occasion  the  total  disability.  It  required  that, 
in  addition  to  the  results  of  the  disability  occasioned  by 
the  accident  of  seven  years  ago,  there  should  be  added  the 
result  of  the  partial  disability  of  the  recent  accident  to  pro- 
duce the  total  disability.  The  absence  of  either  accident 
would  have  left  the  claimant  partially  incapacitated.  We 
think  it  clear  the  total  incapacity  can  not  be  entirely  attri- 
buted to  the  last  accident.  It  follows  that  the  compensa- 


DISABILITY  151 

tion  should  be  based  upon  partial  incapacity;  and  it  is  so 
ordered." 

An  employee  having  lost  one  eye  before  entering  the 
employment,  lost  another  from  an  injury  while  at  work. 
He  was  held,  under  the  Mass.  Act,  entitled  to  compensa- 
tion for  "total  incapacity  for  work."  The  court  said:  "The 
total  capacity  of  this  employee  was  not  so  great  as  it  would 
have  been  if  he  had  had  two  sound  eyes.  His  total  ca- 
capacity  was  thus  only  a  part  of  that  of  a  normal  man. 
But  tha,t  capacity,  which  was  all  he  had  has  been  trans- 
formed into  a  total  incapacity  by  reason  of  the  injury.  That 
result  has  come  to  him  entirely  through  the  injury,"  In  re 
Branconnier,  223  Mass.  273,  111  N.  E.  792. 

§  137.  Loss  of  Second  Hand  Where  First  Was  Lost  Pre- 
viously. 

In  Schwab  v.  Emporium  Forestry  Co.  167  App.  Div.  614, 
153  N.  Y.  Supp.  234,  Jacob  Schwab  made  claim  against  his 
employer,  and  its  insurer  for  compensation  under  the  work- 
men's compensation  act.  His  injury  consisted  of  the  loss 
of  his  right  hand  at  the  wrist,  on  July  6,  1914.  His  left 
hand  had  been  amputated  in  1892.  The  commission  certi- 
fied to  the  court  the  question  whether  the  claimant  was  en- 
titled to  compensation  for  permanent  total  disability,  or  for 
loss  of  one  hand.  The  court  determined  that  he  was  en- 
titled to  an  award  for  permanent  total  disability,  and  said : 

"If  a  man  has  two  hands,  he  is  presumably  a  more  effi- 
cient worker  and  can  receive  higher  wages  than  if  crippled 
by  the  loss  of  one  hand.  The  method  of  payment  of  com- 
pensation for  the  loss  of  one  hand  is  to  allow  the  salary 
which  the  injured  party  was  earning  for  244  weeks.  If  the 
injured  party  had  two  hands  and  were  earning  $20  a  week, 
if  he  lost  one  hand  he  would  recover  $4,880.  Another  work- 
man having  lost  one  hand  before  entering  the  employment 
would  be  receiving,  say,  $10  a  week  for  less  efficient  service. 
If  that  workman  lost  the  second  hand  in  the  service,  if  the 
claim  of  the  insurance  carrier  is  right,  he  would  recover 
for  244  weeks  at  $10  a  week,  or  $2,440.  So  that  for  the 


152  MANUAL  OF  COMPENSATION  LAW 

loss  of  the  second  hand,  which  had  its  double  value  on  ac- 
count of  the  previous  loss  of  the  first  hand,  under  this 
system  he  would  be  entitled  to  recover  only  half  as  much 
as  for  the  loss  of  the  first  hand.  This  anomalous  result 
would  indicate  that  the  legislature  could  not  so  have  in- 
tended. By  subdivision  1  of  section  15,  the  loss  of  both 
hands  shall  presumably  constitute  total  disability.  As 
compensation  for  that  total  disability,  he  is  to  receive 
66  2-3  per  cent  of  the  average  weekly  wages  that  he  is  then 
earning.  As  the  man  with  one  hand  is  presumably  earning 
less  wages  than  a  man  with  two  hands,  to  allow  for  the  loss 
of  the  second  hand  as  a  permanent  disability,  a  percentage 
of  the  weekly  wage  that  he  was  then  earning  would  be  in 
complete  harmony  with  compensation  to  one  who  had  lost 
both  hands  by  the  accident,  who  receives  his  66  2-3  per 
cent  upon  the  greater  wages  that  he  was  earning  at  the 
time  of  the  accident. 

Moreover,  this  reasoning  accords  with  the  rule  which 
seems  to  be  laid  down  in  subdivision  6  of  section  15,  which 
provides  that  the  fact  that  an  employee  "has  suffered  pre- 
vious disability  shall  not  preclude  him  from  compensation 
for  a  later  injury,  'but  in  determining  compensation  for  the 
later  injury,  or  both,  his  average  weekly  wages  shall  be 
such  sum  as  will  reasonably  represent  his  earning  capacity 
at  the  time  of  the  later  injury.'  Cases  are  cited  upon  the 
attorney  general's  brief  which  indirectly  lend  support  to  his 
contention  that  the  claimant  has  the  right  to  recover  as  for 
a  permanent  disability.  But  the  decision  may  well  rest  up- 
on the  logic  of  the  situation,  in  view  of  the  fact  that  the 
amount  of  compensation  depends  upon  the  weekly  wage, 
and  the  weekly  wage  is  influenced  by  his  crippled  condi- 
tion at  the  time  of  the  accident. 

In  answer  to  the  question  certified,  we  decide  that  the 
claimant  is  entitled  to  recover  as  for  total  disability." 

An  appeal  from  this  judgment  was  taken  to  the  court 
of  appeals  of  the  State. 


DISABILITY  153 

138.  Failing  Health  As  Affecting  Total  Disability. 

The  fact  that  an  injured  employee  was  in  failing  health 
and  would  probably  soon  be  totally  incapacitated  from  work 
on  account  of  his  physical  weakness,  is  not  a  bar  to  his 
claiming  compensation  for  total  disability  where  the  injury 
was  sufficient  to  produce  total  disability,  regardless  of  his 
physical  condition.  Duprey  v.  Maryland  Casualty  Co.,  106 
N.  E.  686,  219  Mass.  189. 

Under  the  California  act  when  an  aged  workman  re- 
ceived fractured  ribs  in  an  accident  and  recovered  from 
these  but  on  account  of  his  advanced  age  could  not  recoup 
the  strength  to  take  up  his  duties  again,  it  was  held  that 
he  was  entitled  to  compensation  only  for  the  time  actually 
lost  from  his  work  as  a  result  of  the  fractures  but  not  to 
such  further  disability  as  was  brought  on  by  the  natural 
physical  breakdown  due  to  age.  Such  disability  was  held 
not  to  be  due  to  a  natural  hazard  of  the  business.  Udell  v. 
Wagner,  Peterson  &  Wilson,  2  Cal.  Ind.  Ace.  Comm.  Dec. 
113,  11  N.  C.  C.  A.  (note)  58.  See  also,  In  re  Browning, 
Ohio  Ind.  Comm.  No.  68112,  July  15,  1915,  11  N.  C.  C.  A. 
(note)  56.  See  also  Clark  v.  George  Taylor  &  Co.  (Eng.) 
2  Sc.  L.  T.  145,  11  N.  C.  C.  A.  54. 

In  Bateman  Mfg.  Co.  v.  Smith,  85  N.  J.  Law  409,  89 
Atl.  979,  4  N.  C.  C.  A.  588,  Smith  received  an  injury  crush- 
ing his  right  leg.  He  was  73  years  old  and,  on  account  of 
his  age  and  the  inability  of  the  bones  to  knit,  this  accident 
caused  permanent  disability  in  his  occupation  as  plumber, 
which  required  standing. 

The  judge  of  the  court  of  common  pleas  of  Camden 
County  awarded  compensation  for  total  disability  for  400 
weeks.  This  award  was  reversed  by  the  supreme  court  and 
compensation  awarded  for  175  weeks,  the  compensation 
specified  for  loss  of  a  leg.  In  rendering  this  decision  the 
court  said  that  the  award  must  be  limited  by  the  schedule 
contained  in  paragraph  11  of  section  2  of  the  act  and  that 
the  age  or  health  of  the  employee,  although  causing  an  ac- 


154  MANUAL  OF  COMPENSATION  LAW 

cident  to  have  a  different  effect,  does  not  affect  the  amount 
of  compensation. 

The  case  of  City  of  Milwaukee  v.  Ritzow  158  Wis.  376, 
149  N.  W.  480,  7  N.  C.  C.  A.  498,  presents  an  interesting 
question  under  the  Wisconsin  act  which  provides  that  in 
case  of  the  permanent  injury  of  an  employee  who  is  over 
55  years  of  age  the  compensation  shall  be  reduced  by  5  per 
cent,  if  over  60  years  of  age  by  10  per  cent,  and  if  over  65 
years  of  age  by  15  per  cent.  Other  subdivisions  provide 
that,  in  case  of  the  death  of  an  injured  employee,  a  sum 
equal  to  the  compensation  for  permanent  injury  or  dis- 
ability, shall  be  paid  as  benefits  to  the  surviving  dependents 
of  the  employee.  In  the  present  case  the  employee,  a  man 
80  years  of  age,  was  killed  in  the  course  of  his  employment, 
and  the  industrial  commission  awarded  his  widow  an 
amount  equal  to  four  times  his  last  average  annual  earn- 
ings, which  is  the  amount  provided  for  permanent  dis- 
ability, without  making  any  15  per  cent  reduction.  The 
circuit  court  of  Dane  County  affirmed  this  award,  and  the 
city  appealed  to  the  supreme  court.  The  latter  held  that 
the  term  "permanent  injury"  was  used  in  the  ordinary 
sense,  and  did  not  include  injury  resulting  in  death,  in  spite 
of  the  fact  that  the  reason  for  the  reduction  in  such  cases 
might  be  stronger  than  in  cases  where  the  employee  sur- 
vives with  permanent  disability.  The  full  award  was  there- 
fore affirmed,  two  judges  dissenting,  the  court  saying  that 
it  was  so  easy  for  the  legislature  to  specify  if  it  had  desired 
to  reduce  death  benefits  as  well  as  those  for  permanent 
disability  that  its  failure  to  do  so  inclined  the  court  to  the 
view  that  such  was  not  its  intention  even  though  the  "rea- 
son of  the  statute  as  to  reduction  of  compensation  applies 
stronger  to  the  condition  not  included  in  its  strict  letter 
than  to  that  which  is." 

§139.  Disability  for  Particular  Work  Not  Total 

In  Mellen  Lumber  Co.  v.  Industrial  Comm.  154  Wis.  114, 
142  N.  W.  187,  L.  R.  A.  1916A  374,  Ann.  Cass.  1915B 
997, 'the  question  involved  was  as  to  the  degree  of  disability 


DISABILITY  155 

suffered  by  a  shingle  sawyer  who  lost  the  thumb  and  index 
finger  of  his  left  hand.  He  was  earning  in  excess  of  $750 
per  year  when  injured,  and  applied  to  the  industrial  com- 
mission to  fix  the  amount  of  compensation  which  he  was 
entitled  to  receive.  The  commission  referred  the  inquiry 
to  one  of  its  members  to  take  .testimony  and  report  his 
findings.  The  findings  were  to  the  effect  that  the  earn- 
ing capacity  of  the  employee,  Winters,  had  been  reduced 
to  $9  per  week  by  reason  of  the  injury,  and  that  he  was 
entitled  under  the  law  to  recover  65  per  cent  of  the  dif- 
ference between  the  maximum  amount  allowable  for  total 
disability,  i.  e.,  $14.42  per  week,  and  this  reduced  amount 
of  $9,  or  the  sum  of  $3.52  per  week  for  a  period  of  15  years, 
aggregating  $2,745.60.  The  commission  made  an  award 
in  accordance  with  this  recommendation.  The  employing 
company  commenced  an  action,  alleging,  among  other 
things,  that  the  award  had  been  made  without  a  final  hear- 
ing before  the  commission.  This  contention  was  sustained 
in  the  circuit  court  of  Dane  county,  and  the  record  was  re- 
manded for  further  hearing  before  the  commission.  At 
this  hearing  the  commission  concluded  that  Winters  was 
totally  incapacitated  from  ever  again  following  the  occupa- 
tion of  shingle  sawyer,  though  he  might  find  other  occupa- 
tions "where  he  can  earn  a  good  wage,  and  we  have  little 
doubt  that  he  will  find  his  place  as  a  useful  self-supporting 
member  of  society."  The  commission's  award  was  65  per 
cent  of  the  maximum  allowance,  or  the  sum  of  $9.37  per 
week  until  the  payments  should  aggregate  $3,000. 

The  statute  provides  that  in  case  of  partial  disability  the 
injured  workman  shall  receive  65  per  cent  of  the  weekly 
wage  loss  during  the  period  of  such  partial  disability.  The 
measurement  of  this  loss  is  directed  in  another  paragraph 
to  be  such  as  "shall  fairly  represent  the  proportionate  ex- 
tent of  the  impairment  of  his  earning  capacity  in  the  em- 
ployment in  which  he  was  working  at  the  time  of  the  ac- 
cident." The  commission  found  that  Winters  could  never 
return  to  the  employment  in  which  he  was  working  at  the 


356  MANUAL  OF  COMPENSATION  LAW 

time  of  the  accident,  so  that  there  was  a  total  permanent 
impairment  of  earning  capacity  in  such  employment.  The 
company  contested  this  finding  in  the  circuit  court  of  Dane 
County,  but  judgment  was  against  it,  whereupon  it  ap- 
pealed, this  appeal  resulting  in  the  judgment  of  the  circuit 
court  being  affirmed.  The  grounds  for  this  position  are 
set  forth  in  the  following  quotations  from  the  opinion  of 
the  court. 

"It  is  perfectly  obvious  that  the  commission  did  not  find, 
and  did  not  intend  to  find,  that  Winters  was  incapacitated 
from  engaging  in  all  gainful  occupations.  It  did  find  that 
he  was  permanently  disabled  from  engaging  in  the  work 
of  shingle  sawyer.  The  commission  construed  the  com- 
pensation act  to  mean  that,  where  an  employee  is  totally 
disabled  from  performing  the  particular  work  which  he 
was  performing  when  the  injury  occurred,'  he  is  entitled  to 
recover  the  maximum  allowance  for  total  disability,  no 
matter  what  his  earning  capacity  may  be  in  other  callings. 
The  circuit  court  came  substantially  to  the  same  conclu- 
sion. 

If  subdivision  *b'  of  section  2394-9,  above  quoted  [com- 
pensation for  partial  disability],  stood  alone,  there  could  be 
little  doubt  about  what  it  meant.  But  by  subdivision  2  of 
section  2394-10  the  legislature  explains  how  the  loss  of 
wages  for  the  partial  disability  provided  for  in  subdivision 
'b'  is  to  be  ascertained  and  computed.  It  is  'such  a  per- 
centage of  the  average  weekly  earnings  ...  as  shall 
fairly  represent  the  proportionate  extent  of  the  impair- 
ment of  his  earning  capacity  in  the  employment  in  which 
he  was  working  at  the  time  of  the  accident.  .  .  . '  This 
is  just  what  the  commission  allowed ;  it  having  found  that 
he  was  totally  incapacitated  from  performing  his  former 
work.  This  is  a  new  statute  containing  a  large  number  of 
provisions  which  deal  with  a  new  and  a  complex  subject. 
It  may  well  be  that,  if  the  legislature  had  in  mind  the  con- 
crete case  with  which  we  are  dealing,  it  would  have  pro- 
vided for  such  a  contingency.  It  is  not  very  probable  that 


DISABILITY  157 

it  was  intended  to  give  an  employee  who  lost  a  thumb  and 
finger  of  the  left  hand  the  same  compensation  that  he  would 
'be  entitled  to  receive  had  he  been  so  maimed  that  he  was 
totally  incapacitated  from  doing  any  kind  of  work.  If  this 
is  so,  then  it  is  apparent  that  the  legislature  overlooked 
the  contingency  with  which  we  are  dealing,  or  it  in  fact 
has  provided  that  the  future  earning  capacity  of  the  em- 
ployee must  be  taken  into  account.  If  the  former  is  the 
correct  diagnosis,  then  the  remedy  rests  with  the  legisla- 
ture. It  is  its  function  to  amend  the  act  where  amendment 
is  found  necessary.  The  fact  that  injustice  may  result  in 
the  instant  case  is  nothing  that  concerns  the  courts  unless 
some  constitutional  right  of  the  appellant  is  being  invaded. 
Where  a  statute  plainly  says,  as  this  one  does,  that  the  loss 
in  case  of  partial  disability  shall  consist  of  such  percentage 
of  the  weekly  earnings  of  the  employee  as  shall  fairly  rep- 
resent the  proportionate  extent  of  the  impairment,  of  his 
earning  capacity  in  the  employment  in  which  he  was  work- 
ing at  the  time  of  the  accident,  we  fail  to  see  how  the  court 
would  be  justified  in  adding  thereto  the  following  limi- 
tation: 'Less  such  sums  as  the  employee  might  be  able  to 
earn  in  some  other  calling.'  This  in  effect  is  what  the  court 
would  have  to  do  if  it  adopted  the  construction  for  which 
the  appellant  contends.  There  is  nothing  doubtful,  ob- 
scure, or  ambiguous  about  the  language  used. 

Courts  in  construing  statutes  look  to  consequences, 
but  only  where  there  is  room  for  construction  by  reason  of 
ambiguous  language  being  used  and  where  a  literal  con- 
struction would  lead  to  some  absurd  result." 

§  140.  Permanent  Partial  Disability. 

Every  act,  now  in  effect,  except  that  of  California,  Ari- 
zona, Kansas,  Massachusetts  and  New  Hampshire,  has  a 
schedule  showing,  definitely,  certain  injuries  which  in  them- 
selves constitute  permanent  partial  disability  and  for  which 
a  certain  definite  number  of  weeks'  compensation  or  a  defi- 
nite sum  is  payable.  Illinois,  Rhode  Island,  Texas  and  Mas- 
sachusetts are  examples  of  States  where  the  scheduled 


158  MANUAL  OF  COMPENSATION  LAW 

benefits  are  in  addition  to  other  compensation;  and  Con- 
necticut, Indiana,  Kentucky,  New  York  and  Oklahoma  are 
examples  of  States  where  the  scheduled  benefits  are  in  lieu" 
of  other  compensation  for  the  injuries  named. 

§  141.  Injuries  Other  Than  Those  Scheduled. 

Merely  because  an  injury  is  not  specifically  scheduled 
does  not  remove  it  from  the  operation  of  the  acts.  The 
schedules  are  very  definite  in  their  terms  but  they  are  not 
intended  to  include  all  injuries  of  a  permanently  partial 
nature,  Wagner  v.  American  Bridge  Co.  158  N.  Y.  Supp. 
1043.  All  injuries  not  named  are  usually  intended  to  be  cov- 
ered by  the  general  provisions,  Northwestern  Fuel  Co.  v. 
Leipus  161  Wis.  450,  152  N.  W.  856.  However,  it  was  held  in 
New  York  that  if  any  injury  to  an  employee  should  be  held 
not  to  be  within  the  purview  of  the  act  because  it  "provides 
no  scale  or  gauge  by  which  to  determine  what  compensa- 
tion should  be  provided"  then  the  right  to  recover  remains 
as  it  was  before  the  act  was  passed.  Shinnick  v.  Clover 
Farms  Co.,  169  App.  Div.  236,  154  N.  Y.  Supp.  423,  9  N.  C. 
C.  A.  342. 

Compensation  acts  do  not  take  away  the  right  of  re- 
covery for  an  injury  without  substituting  another  in  its 
place. 

For  injuries  in  cases  of  permanent  partial  disability  not 
scheduled,  compensation  is  to  be  determined  by  the  per- 
centage of  disability  actually  suffered.  In  arriving  at  this 
percentage,  which  is  entirely  a  question  of  fact,  a  wide  lati- 
tude is  allowed.  Any  facts  that  are  pertinent  may  be  taken 
into  consideration.  For  further  consideration  of  above  sub- 
ject see  9  N.  C.  C.  A.  342-349. 

§  142.  Impairment  of  a  Member  Not  "Loss." 

Under  the  Wisconsin  statute  which  has  a  schedule  of 
injuries  and  benefits  it  was  held  that  where  as  a  result  of 
an  injury  an  employee  "would  have  a  forearm  that  is  func- 
tionally 50  per  cent  of  the  normal  forearm"  he  could  not  be 
said  to  have  lost  his  arm  under  the  schedule.  In  that  case, 
Northwestern  Fuel  Co.  v.  Leipus,  161  Wis  450,  152  N.  W. 


DISABILITY  159 

856,  9  N.  C.  A.  A.  347,  the  court  said :  "Obviously  the  'loss' 
of  a  member  designated  in  the  schedule  has  reference,  not 
to  the  impairment  of  the  member  by  the  injury,  but  to  the 
physical  loss  of  it.  All  through  the  schedule  there  is  noth- 
ing to  indicate  that  impairment  of  a  member  was  intended 
to  be  loss  of  a  member  or  that  reduction  of  the  efficiency  of 
the  member  one-half  would  be  one-half  loss  of  the  member. 
The  loss  of  an  arm  at  the  elbow'  or  'the  loss  of  a  forearm  at 
the  lower  half  thereof  does  not  mean  the  impairment  of  the 
arm,  but  the  actual  physical  severance  of  it.  The  fact  that 
the  schedule  so  specifically  fixes  the  precise  injury  for 
which  compensation  is  allowed,  excludes  the  idea  that  the 
schedule  covers  any  other  or  different  injury." 

In  Barbour  Flax  Spinning  Co.  v.  Hagarty  85  N.  J.  Law 
407,  89  Atl.  919,  4  N.  C.  C.  A.  586,  judgment  was  rendered 
in  favor  of  the  petitioner,  Hagarty,  in  the  lower  court  for 
$5  per  week  for  200  weeks,  for  the  loss  of  motion  of  his 
right  arm  at  the  elbow,  consisting  of  permanent  inability 
to  bend  it  more  than  90  degrees.  The  amount  of  compen- 
sation awarded  was  the  same  as  the  law  provides  for  the 
loss  of  an  arm.  The  law  provides  that  compensation  for  in- 
juries not  specified  shall  bear  such  relation  to  the  amounts 
stated  in  the  schedule  of  the  act  as  the  disabilities  bear  to 
those  produced  by  the  injuries  named  in  the  schedule.  On 
appeal  the  supreme  court  held  that  the  aw'ard  could  not 
be  justified  under  the  provision  just  mentioned,  and  there- 
fore reversed  the  decision  and  remanded  the  case  for  a  new 
trial. 

§  143.  Permanent  Partial  Disability  Though  Earning  Power 
Unimpaired. 

In  De  Zang  Standard  Co.  v.  Pressey,  86  N.  J.  Law  469, 
92  Atl.  278,  the  court  said  in  part: 

"This  case  arises  under  the  workmen's  compensation 
act,  and  the  principal  question  argued  is  whether  the  peti- 
tioner should  receive  an  award  for  the  permanent  impair- 
ment of  the  function  of  his  right  arm,  when  it  is  shown 


160  MANUAL  OF  COMPENSATION  LAW 

that  he  has  been  earning  the  same  pay  as  he  earned  before 
the  accident. 

The  petitioner  as  a  carpenter  in  the  employ  of  the 
prosecutor  earned  $20  a  week.  He  sustained  an  accident 
out  of  and  in  the  course  of  his  employment  which  caused  a 
fracture  of  the  bone  of  the  forearm  known  as  the  'radius' 
at  or  near  the  elbow,  and  which  is  admitted  to  have  caused 
the  permanent  loss  of  30  per  cent  of  the  use  of  his  arm. 
After  two  weeks  he  went  b^ck  to  work  under  the  same  em- 
ployer, at  the  same  wages,  and  after  a  time  entered  the 
employ  of  his  son  at  the  same  wages.  Later  on  when  work 
became  slack  he  worked  independently,  receiving  the  same 
pay  for  the  time  he  was  actually  employed. 

The  prosecutor's  principal  claim  is  that  there  can  not 
be  a  statutory  'disability'  when  it  appears  that  the  earnings 
of  the  petitioner  had  not  been  impaired.  With  this  we  can 
not  agree.  It  may  well  be  that  for  a  time  an  injured  em- 
ployee might  be  able  to  earn  the  same  wages  as  before  the 
accident;  but,  as  we  read  the  act,  the  disability  intended 
thereby  is  a  disability  due  to  the  loss  of  a  member,  or  part 
of  a  member,  or  of  a  function,  rather  than  to  mere  loss  of 
earning  power.  Even  if  this  were  not  so,  it  does  not  follow 
that  the  injured  employee  had  not  sustained  a  distinct  loss 
of  earning  power  in  the  near  or  not  remote  future  and  for 
which  the  award  is  intended  to  compensate.  If  it  were  a 
question  of  damages  at  common  law,  the  elements  of  dam- 
age would  consist  of  present  loss  of  wages,  probably  future 
loss  of  wages,  pain  and  suffering,  and  temporary  or  per- 
manent disability,  which  loss  the  jury  would  be  at  liberty 
to  assess  quite  independently  of  the  fact  that  the  plaintiff 
was  earning  the  same  wages,  except  so  far  as  that  fact 
might  be  evidential  with  regard  to  the  extent  of  the  dis- 
ability." 

See  also  Burbage  v.  Lee  87  N.  J.  Law  36,  93  Atl.  859. 

§  144.  Concurrent  Disability  from  Different  Injuries. 

The  compensation  law  speaks  in  terms  of  disability  un- 
less the  injuries  are  covered  by  schedule.    Therefore  if  an 


DISABILITY  161 

employee  suffers  several  injuries  in  one  accident,  these  in- 
juries are  not  treated  separately,  nor  is  compensation  al- 
lowed as  if  each  were  the  result  of  a  distinct  accident. 
Their  combined  effect  is  treated  as  a  single  cause  of  dis- 
ability and  compensation  is  allowed  according  to  the  actual 
degree  of  disability  suffered  as  a  result  of  all  of  them  with- 
in the  terms  and  limits  of  the  act.  Therefore  if  an  em- 
ployee suffers  in  one  accident  the  loss  of  an  arm  and  also 
other  injuries  not  scheduled,  compensation  is  payable  only 
for  the  period  scheduled  for  the  loss  of  an  arm,  unless  the 
actual  disability  resulting  from  the  other  injuries  exceeds 
the  number  of  weeks  scheduled  for  the  loss  of  an  arm. 

In  Limron  v.  Blair  et  al.,  181  Mich.  76,  147  N.  W.  546, 
5  N.  C.  C.  A.  866,  an  employee  lost  a  foot  and  besides  his 
shoulder  was  broken,  the  other  leg  was  badly  gashed,  and 
minor  injuries.  The  court  said:  "The  statute  speaks  in 
terms  of  disability.  All  of  its  provisions  being  considered 
it  does  not  mean  that  compensation  must  be  paid  during  a 
period  of  actual  disability  and  also,  if  a  member  is  lost,  dur- 
ing a  period  equal  to  the  one  during  which  total  disability 
is  deemed  to  continue.  It  does  not  provide  a  specific  in- 
demnity for  the  loss  of  a  member  in  addition  to  compensa- 
tion for  disability.  The  aim  of  the  statute  is  to  afford  com- 
pensation if  the  employee  is  disabled.  When  the  period  of 
disability  ends,  compensation  ceases." 

See  also  State  Ex  rel  Kennedy  v.  District  Ct.,  129  Minn. 
91, 151  N.  W.  530,  8  N.  C.  C.  A.  478;  Fredenburg  v.  Empire 
United  R.  Co.,  168  App.  Div.  618,  154  N.  Y.  Supp.  351 ;  see 
L.  R.  A.  1916A  (note)  257,  and  5  N.  C.  C.  A.  (note)  866- 
870. 

In  Fredenburg  v.  Empire  United  R.  Co  (supra)  the 
court  said: 

"The  act  provides  but  the  single  rate  of  compensa- 
tion, to  wit,  66  2-3  per  cent  of  the  employee's  average  week- 
ly wages ;  and  this  percentage  for  a  longer  or  shorter  period 
is  applicable  to  all  disabilities,  whether  total  or  partial,  and 
is  the  maximum  compensation  provided  for  by  the  statute. 


162  MANUAL  OF  COMPENSATION  LAW 

The  act  was  not  intended  as  a  source  of  profit  to  the  em- 
ployee, or  as  a  means  of  punishment  of  the  employer,  who 
in  many  cases  is  wholly  free  from  any  fault  in  connection 
with  the  accident.  If  concurring  awards  may  be  allowed, 
it  is  easy  to  see  how  that  practice  may  be  carried  to  such 
an  extent  as  to  become  very  burdensome  and  unjust  to  the 
employer  and  very  unfortunate  to  an  improvident  employee, 
and  to  a  considerable  extent  render  nugatory  the  beneficent 
purpose  of  the  statute. 

While  the  commission  has  found  that  the  injuries  other 
than  those  resulting  in  the  loss  of  the  foot  have  disabled 
the  claimant  from  working  until  January  28,  the  date  of 
the  report,  and  has  awarded  compensation  therefore  to 
February  27,  1915,  and  has  continued  the  case  for  further 
hearing,  there  is  no  finding  that  such  disability  is  perma- 
nent, as  would  be  the  case  in  the  event  of  the  loss  of  a  thumb 
or  finger,  or  that  the  disability  will  exist  at  the  expiration  of 
the  period  of  205  weeks. 

The  award  of  compensation  for  the  loss  of  the  foot 
should  be  affirmed.  The  award  of  compensation  for  injuries 
other  than  the  loss  of  the  foot  should  be  reversed,  but  with- 
out prejudice  to  the  further  continuance  of  the  case,  and 
to  the  right  of  the  claimant  to  make  further  application  to 
the  commission,  or  its  successor,  for  an  award  of  compen- 
sation on  account  of  such  other  injuries." 

In  O'Connell  v.  Simms  Magneto  Co.  85  N.  J.  Law  64,  89 
Atl.  922,  4  N.  C.  C.  A.  590,  the  injuries  consisted  of  frac- 
tured skull,  broken  collar  bone  and  ribs,  injury  to  eye,  pa- 
ralysis of  right  side  of  mouth,  injury  to  right  nostril  and 
impairment  of  use  of  right  ear  and  right  arm.  Making  an 
allowance  for  each  of  these,  and  totaling  them,  the  judge  of 
the  lower  court  arrived  at  a  total  of  340  weeks,  and  judg- 
ment was  rendered  awarding  compensation  to  the  petitioner 
for  that  length  of  time.  On  appeal,  the  judgment  was  re- 
versed and  the  case  remanded  for  revision  of  the  compen- 
sation, the  court  saying: 

.  "The  evidence  of  the  petitioner  shows  conclusively  that 


DISABILITY  163 

the  disability  of  the  petitioner  is  far  from  total.  Under  the 
statute  only  400  weeks'  pay  could  have  been  allowed  for  to- 
tal permanent  disability,  such  as  loss  of  both  hands,  arms 
feet,  or  eyes.  None  of  the  injuries  suffered  by  the  peti- 
tioner are  specifically  provided  for  in  the  schedules  con- 
tained in  the  act,  and  allowance  therefor  must  have  been 
made  under  the  provision  that  the  compensation  in  other 
cases  shall  bear  such  relation  to  the  amounts  stated  in  the 
schedule  as  the  disabilities  bear  to  those  produced  by  the 
injuries  named  in  the  schedule. 

There  is  no  evidence  that  the  disabilities  of  the  peti- 
tioner stand  to  total  disability  in  the  proportion  of  340  to 
400.  On  the  contrary,  the  evidence  makes  it  clear  that 
the  proportionate  extent  of  the  disability  is  very  much  less. 
The  difficulty  arose  probably  from  the  desire  of  the  trial 
judge  to  award  what  he  thought  was  fair  compensation. 
This  was,  however,  disregarding  the  statute,  not  following 
it  except  in  form." 

§  145.  Injuries  to  Foot  or  Leg. 

The  schedule  of  each  act  usually  provides  specifically 
what  constitutes  the  loss  of  a  foot  or  leg. 

In  Rakies  v.  Del.  L.  &  W.  R.  Co.  89  Atl.  953,  4  N.  C.  C. 
A.  734,  the  court  had  to  determine  the  amount  of  award  for 
an  injury  resulting  in  the  loss  of  motion  of  the  right  ankle 
of  the  claimant  on  account  of  an  electrical  burn.  The  judge 
of  the  court  below  had  rated  the  disability  as  equivalent  to 
the  loss  of  a  leg,  which,  according  to  the  schedule  embodied 
in  the  statute,  would  give  compensation  on  a  basis  of  one- 
half  the  injured  man's  wages  for  a  period  of  175  weeks. 
The  allowance  for  the  loss  of  a  foot  is  half  wages  for  124 
weeks.  The  supreme  court  held  that  the  loss  of  function 
of  the  ankle  corresponded  to  the  loss  of  a  foot  rather  than 
the  loss  of  a  leg,  the  statute  providing  that  for  injuries  not 
named  the  compensation  should  bear  such  relation  to  the 
amounts  stated  in  the  schedule  as  the  disabilities  bear  to 
those  produced  by  the  injuries  named.  Under  this  provision 
it  was  decided  that  the  amount  should  not  exceed  that  al- 
lowed for  the  loss  of  a  foot,  and  "whether  it  should  equal 


164  MANUAL  OF  COMPENSATION  LAW 

that  is  a  matter  that  ought  to  be  determined  by  the  trial 
judge." 

in  Connecticut  where  an  injury  is  such  that  the  use- 
fulness is  no  greater  than  an  artificial  foot  would  give,  an 
award  was  made  for  total  loss  of  the  foot.  Mahoney  v.  Sey- 
mour Mfg.  Co.  1  Conn.  Comp.  Dec.  292. 

All  injuries  to  feet  or  legs  not  scheduled  are  compensa- 
ble  in  so  far  as  they  create  a  disability  in  some  degree  and 
are  the  result  of  an  accident  or  injury  to  which  the  act  ap- 
plies. For  note  on  injuries  to  feet,  see  9  N.  C.  C.  A.  773- 

792. 

i 

§  146.  Loss  of  Hand  or  Arm. 

In  State  Ex  rel  Kennedy  et  al.,  v.  District  Court  of  Clay 
County  et  al.,  129  Minn.  91,  151  N.  W.  930,  8  N.  C.  C.  A. 
478,  the  court  said : 

"The  trial  court  found  that  plaintiff's  hand  was  crushed, 
the  flesh,  muscles,  and  tendons  thereof  torn;  that  these  in- 
juries so  affected  the  hand  as  to  cause  the  plaintiff  to  lose, 
to  a  large  extent,  the  power  to  flex  the  fingers  or  to  grip 
or  use  the  ordinary  workman's  tools  that  he  was  accus- 
tomed to  use  in  the  work  he  was  qualified  and  accustomed 
to  do ;  that  the  circulation  of  blood  in  the  hand  was  greatly 
impeded  and  the  nerves  of  sensation  and  control  impaired 
to  a  considerable  extent.  These  injuries,  the  court  found, 
resulted  in  the  permanent  partial  disability  of  the  hand, 
amounting  to  at  least  85  per  cent  of  the  total  disability  or 
the  loss  of  the  use  thereof.  The  court  further  found  that 
plaintiff  also  suffered  injuries  to  his  right  arm  'by 'the 
crushing  of  the  bones  thereof  and  the  straining  and  tearing 
of  the  ligaments  and  muscles  of  said  arm,  all  of  which  has 
caused  the  permanent  partial  disability  of  said  arm  to  the 
extent  of  at  least  35  per  cent  of  the  total  disability  or  loss 
of  the  use  thereof.' '  The  trial  court  awarded  separate 
amounts  for  the  injuries  to  the  hand  and  arm.  The  appel- 
late court  continued: 

"We  think  the  trouble  arises  largely,  if  not  wholly,  with 
the  attempt  of  the  trial  court  to  separate  the  injuries  into 
two  units.    Those  to  the  hand  and  those  to  the  arm.     .     . 
.    The  act  provides  (G.  S.  1913  §  8230K)  that  'amputations 
between  the  elbow  and  the  wrist  shall  be  considered  as 


DISABILITY  165 

equivalent  to  the  loss  of  a  hand.'  We  think  that  injuries 
between  the  elbow  and  the  wrist  should  be  considered  in- 
juries to  the  hand.  Rakies  v.  Delaware  L.  &  W.  R.  Co.  (N. 
J.)  88  Atl.  953,  4  N.  C.  C.  A.  734.  If  there  were  no  injuries 
except  to  the  hand  and  forearm,  we  think  the  court  should 
have  awarded  compensation  based  upon  a  percentage  of 
total  disability  to  the  hand.  If  there  were  permanent  in- 
juries to  the  arm  above  the  elbow,  the  court  should  not  have 
attempted  to  separate  these  injuries  from  those  to  the 
hand,  but  should  have  found  the  percentage  of  total  dis- 
ability to  the  arm  as  a  whole,  and  should  have  awarded 
compensation  accordingly.  If  the  division  of  the  arm  into 
two  units  for  the  purpose  of  fixing  compensation  under 
the  act  is  proper,  there  would  be  no  reason  for  saying  that 
the  thumb,  the  different  fingers,  the  phalanges  of  the  thumb 
and  each  finger,  might  each  be  considered  as  a  separate 
unit  and  the  compensation  allowed  for  these  injuries  added 
together  and  added  to  the  compensation  allowed  for  a  hand 
or  arm.  This  was  plainly  not  the  intent  of  the  law.  There 
should  be  but  one  unit  for  measuring  the  injury  and  the 
compensation  to  be  awarded." 

In  Floccher  v.  Fidelity  &  Deposit  Co.  of  Md.  221  Mass. 
54,  108  N.  E.  1032,  Frank  Floccher  was  granted  certain 
compensation  by  the  industrial  accident  board,  and  the  in- 
surer appealed.  The  employee's  right  hand  was  capable  of 
a  small  amount  of  motion  in  the  thumb  and  first  finger, 
while  the  other  fingers  were  paralyzed,  and  the  circulation 
impaired  so  that  the  hand  frequently  went  to  sleep.  The 
court  affirmed  the  decision  giving  compensation  for  loss  of 
a  hand,  holding  that  it  was  permanently  incapable  of  use, 
since  the  possible  use  was  so  small  as  to  be  negligible.  It 
also  held  that  the  evidence  that  an  operation  might  im- 
prove the  condition  was  so  slight  that  !the  claimant  could 
not  be  required  to  submit  to  it  on  peril  of  forfeiture  of  his 
compensation. 

In  Rockwell  v.  Lewis,  168  App.  Div.  674,  154  N.  Y.  Supp. 
893,  the  facts  were  that  the  compensation  commission  de- 


166  MANUAL  OF  COMPENSATION  LAW 

termined  that  the  claimant  had  lost  the  index,  second  and 
third  fingers,  and  that  his  fourth  finger  was  mutilated.  For 
the  four  injuries  they  allowed  respectively  46,  30,  25,  and 
4  weeks,  aggregating  135  weeks  at  $11.54  per  week,  or 
$1,757.90.  Subsequently,  in  February,  1915,  the  commis- 
sion again  took  up  the  case,  reached  the  conclusion  that  the 
employee  had  lost  the  use  of  his  hand,  and  made  an  addi- 
tional allowance,  bringing  the  total  time  up  to  244  weeks. 
The  employer  and  insurer  urged  that  the  commission  had 
no  power  to  make  awards  other  than  those  specifically  pro- 
vided for  by  the  statute  for  the  loss  of  the  separate  fingers. 
The  court,  however,  affirmed  the  later  award,  holding  that 
a  finding  of  permanent  loss  of  use  of  the  hand,  which  is 
made  by  the  statute  equivalent  to  the  loss  of  the  hand,  was 
justified  by  the  facts. 

In  Meley  v.  Massachusetts  Employees'  Ass'n.  219  Mass. 
136,  106  N.  E.  559,  the  insurer  appealed  from  the  award  of 
the  industrial  accident  board.  A  provision  of  the  amend- 
ment to  the  act  was  in  controversy  which  is  to  the  effect 
that  the  additional  amounts  to  be  paid  "in  case  of  the  loss 
of  a  hand,  foot,  thumb,  finger,  or  toe,"  shall  also  be  paid  "in 
case  the  injury  is  such  that  the  hand,  foot,  thumb,  finger, 
or  toe  is  not  lost  but  is  so  injured  as  to  be  incapable  of  use; 
provided,  that  when  the  incapacity  ceases  the  additional 
payment  shall  also  cease."  The  industrial  accident  board 
had  held  that  the  right  hand  was  incapable  of  use,  and  the 
court  held  that  there  was  evidence  to  support  this  finding, 
since  it  showed  that  the  flexor  tendons  of  nearly  all  the 
fingers  and  of  the  thumb  were  cut,  and  that  the  hand  could 
be  used  only  as  a  hook.  The  court  also  held  that  the  statute 
warranted  giving  additional  compensation  for  an  injury  to 
one  finger  of  the  left  hand. 

For  further  note  on  injuries  to  or  loss  of  hands,  see  8 
N  .C.  C.  A.  478-484. 

§  147.  Injuries  to  Fingers. 

In  Feinman  v.  Albert  Mfg.  Co.  155  N.  Y.  Supp.  909,  170 
App.  Div.  147,  Annie  Feinman,  while  operating  a  sewing 


DISABILITY  167 

machine  in  manufacturing  underclothing,  was  injured  by 
a  needle  puncturing  the  third  finger  of  her  left  hand,  which 
necessitated "  its  amputation  at  the  first  phalange.  Cel- 
lulitis  of  the  joints  developed,  so  that  the  remainder  of  the 
finger,  while  not  removed,  became  useless.  Two-thirds  of 
wages  for  25  weeks  is  fixed  by  the  law  as  the  compensation 
for  the  loss  of  a  third  finger,  and  it  is  provided  that  in  other 
cases  of  this  class,  not  specifically  provided  for,  the  com- 
pensation shall  be  two-thirds  of  the  difference  in  earning 
capacity  during  the  continuance  of  partial  disability.  The 
compensation  commission  after  several  hearings  had 
granted  the  allowance  for  25  weeks,  and  then  made  a  fur- 
ther award,  adopting  the  theory  of  the  claimant  that  there 
was  not  a  "loss"  of  the  finger,  so  that  the  provision  for 
"other  cases,"  permitting  payments  for  wage  loss,  became 
operative.  The  court  reversed  this  award,  holding  in  ac- 
cordance with  the  contention  of  the  defendants,  that  the 
condition  amounted  to  a  loss  of  the  finger,  and  that  the 
amount  of  compensation  under  such  circumstances  should 
certainly  not  be  more  than  that  for  the  complete  loss  by 
amputation. 

In  re  Ethier  217  Mass.  511,  105  N.  E.  376,  5  N.  C.  C. 
A.  611,  it  was  held  that  the  Massachusetts  workmen's  com- 
pensation act  and  its  amendment,  which  provides  that  the 
same  amount  as  for  loss  of  the  member  shall  be  paid  "in 
case  an  injury  is  such  that  the  hand,  foot,  thumb,  finger,  or 
toe  is  not  lost,  but  is  so  injured  as  to  be  permanently  in- 
capable of  use,"  does  not  provide  for  damages  for  perma- 
nent injury  for  the  injury  of  a  phalange  not  resulting  in 
the  permanent  incapacity  of  the  entire  finger. 

The  award  of  compensation  under  the  New  York  Act 
of  half  of  the  amount  payable  for  the  loss  of  an  entire  finger 
was  held  proper  where  practically  all  of  the  outer  phalange 
of  the  third  finger  was  cut  off.  In  re  Petrie  109  N.  E.  549, 
215  N.  Y.  335. 

Where  a  man  received  an  injury,  under  the  New  York 
Act,  which  resulted  in  the  total  loss  of  the  index,  second 


168  MANUAL  OF  COMPENSATION  LAW 

and  third  fingers,  while  the  fourth  finger  was  stiff  and  prac- 
tically useless,  he  was  held  to  be  entitled  to  compensation 
as  for  a  totally  useless  hand.  Rockwell  v.  Lewis  154  N.  Y. 
S.  893,  168  App.  Div.  674. 

An  injury  resulted  in  the  loss  of  a  part  of  the  second 
phalange  of  an  index  finger.  It  was  held  that  compensa- 
tion was  confined  to  that  provided  for  the  loss  of  an  entire 
finger.  Fortino  v.  Merchants  Despatch  Transp.  Co.  156  N. 
Y.  S.  262. 

In  James  Bannister  Co.  v.  Krieger  84  N.  J.  Law  30,  85 
Atl.  1027  rehearing  denied  89  Atl.  923,  the  question  con- 
cerned an  award  for  the  loss  of  the  first  phalanx  of  the  in- 
dex finger.  'The  law  prescribed  that  the  award  for  a  single 
phalanx  should  be  one-half  of  the  amount  of  the  award  for 
the  loss  of  an  entire  finger,  and  also  that  the  amount  paid 
should  be  50  per  cent,  of  the  wages  earned,  no  award  to  be 
for  less  than  $5  per  week.  On  this  basis  the  award  for  the 
single  phalanx  was  as  large  as  for  the  entire  finger  inas- 
much as  the  claimant  was  earning  but  $8.50  per  week,  so 
that  the  minimum  rate  fixed  by  the  statute  prevented  a  pro- 
portionate reduction.  The  employer  contended  that  the  time 
during  which  payments  should  continue  should  be  reduced 
by  one-half,  but  the  court  below  ruled  that  the  provision 
of  law  related  to  the  amounts  payable  and  not  to  their  dur- 
ation, and  on  this  point  the  supreme  court  upheld  the  court 
below. 

The  employer  also  contended  that  the  35  weeks  during 
which  payments  were  to  continue  should  be  reduced  by  a 
period  of  two  weeks  during  which,  according  to  the  statute, 
medical  and  hospital  services  were  to  be  furnished  the  in- 
jured workman.  The  trial  court  held,  however,  that  the  35 
weeks  during  which  compensation  payments  were  to  be 
made  were  independent  of  the  provision  for  medical  serv- 
ices during  two  weeks,  and  could  not  therefore  be  reduced 
as  the  employer  contended. 

Under  the  discretion  conferred  by  the  law,  the  trial 
judge  had  commuted  the  periodical  payments  allowed  to  a 


DISABILITY  169 

lump  sum.  He  did  this  simply  by  multiplying  the  weekly 
allowance  by  the  number  of  weeks,  which  the  supreme  court 
held  was  erroneous,  inasmuch  as  the  present  worth  of  the 
sum  should  have  been  awarded  instead  of  the  total  prod- 
uct, and  for  this  reason  the  judgment  of  the  lower  court 
was  reversed  and  the  record  remitted  for  further  proceed- 
ings in  accordance  with  the  opinion  given. 

Where  a  thumb  was  badly  mutilated,  but  not  lost,  it  was 
proper  to  consider  the  injury  as  the  loss  of  one  phalange 
of  the  thumb.  Weber  v.  American  Silk  Spinning  Co.  (R.  I.) 
95  Atl.  603. 

In  re  Stickley  219  Mass.  513,  107  N.  E.  350,  the  facts 
were  that  Job  Stickley  was  injured  December  13,  1912, 
losing  four  fingers  of  his  right  hand.  It  was  conceded  that 
he  was  .totally  incapacitated  until  May  16,  1913.  Between 
May  16  and  October  17  he  worked  18  days  for  his  old  em- 
ployer, as  watchman  and  at  his  old  job  as  a  pile  driver.  It 
was  agreed  that  he  was  entitled  to  compensation  for  partial 
incapacity  from  July  11  to  October  17.  After  October  17, 
1913,  he  was  unable  to  obtain  work  although  he  made  dili- 
gent efforts.  The  committee  on  arbitration  found  that  on 
account  of  his  incapacity  to  work  and  his  inability  to  se- 
cure employment  he  was  entitled  to  $8.70  per  week  from  the 
last-named  date  for  an  indefinite  time,  subject  to  the  right 
of  review  provided  in  the  statute.  Since  his  original  wages 
were  $2.75  per  day,  this  was  equivalent  to  a  finding  of  to- 
tal incapacity.  The  industrial  accident  board  made  a  simi- 
lar finding.  The  insurer  contended  that  as  a  matter  of 
law,  there  being  no  physical  change,  a  man  who  had  been 
only  partially  incapacitated  could  not  become  totally  in- 
capacitated, and  that  even  if  that  were  possible  such  a  situ- 
ation had  not  occurred  in  this  case.  Since,  while  the  board 
detailed  certain  testimony,  the  record  did  not  show  that  the 
court  had  before  it  all  the  evidence  on  which  the  board 
based  its  findings,  the  court  held  that  it  could  not  determine 
whether  the  rulings  requested  by  the  insurer  should  have 
been  given.  The  degree  was  therefore  affirmed. 


170  MANUAL  OF  COMPENSATION  LAW 

In  Maziarski  v.  George  A.  Ohl  &  Co.  86  N.  J.  Law  692, 
93  Atl.  110,  the  court  said: 

"The  plaintiff  suffered  injuries  to  the  index  finger  and 
the  middle  finger  of  the  left  hand.  That  to  the  index  finger 
was  found  by  the  judge  to  be  temporary,  and  he  awarded 
50  per  cent  of  the  plaintiff's  wages  for  six  weeks,  during 
which  the  injury  prevented  the  use  of  the  finger.  He  found 
the  injury  to  the  other  finger  to  be  equal  to  the  loss  of  one- 
half  the  phalange  of  that  finger;  as  the  plaintiff's  wages 
were  $15,  the  amount  allowed  for  the  loss  of  a  finger  would 
have  been  $7.50,  and  one-half  of  that,  the  amount  allowed 
for  the  loss  of  a  phalange,  would  have  been  $3.75 ;  and  an 
injury,  equal  as  this  was  found  to  be,  to  the  loss  of  one- 
half  of  the  phalange,  would,  under  the  clause  providing 
for  a  proportionate  compensation,  be  entitled  to  one-half 
of  $3.75.  The  judge,  however,  held  the  clause  providing 
for  a  minimum  compensation  of  $5  to  be  applicable,  and 
fixed  that  amount  for  30  weeks  as  the  proper  compensation. 
We  have  just  sustained  this  view  in  James  A. 
Banister  Co.  v.  Kriger,  89  Atl.  923.  The  allowance 
of  compensation  for  both  the  temporary  injury  and 
the  permanent  injury  has  been  sustained  in  Nitram  Co.  v. 
Court  of  Common  Pleas,  84  N.  J.  Law,  243,  86  Atl.  435.  That 
distinct  damage  may  be  allowed  for  injury  to  each  finger  is 
sufficiently  indicated  by  the  provision  of  the  statute  that 
the  amount  received  for  more  than  one  finger  shall  not  ex- 
ceed the  amount  provided  in  the  schedule  for  the  loss  of 
a  hand." 

In  re  Nichols  217  Mass.  3,  104  N.  E.  566,  Ann.  Cass. 
1915C  862,  4  N.  C.  C.  A.  546,  the  administratrix  of  a  de- 
ceased employee  began  a  proceeding  for  compensation,  and 
the  decree  of  the  superior  court  of  Suffolk  County  awarded 
her  the  damages  specified  by  the  act  for  the  death  of  an 
employee.  The  employee  himself  had  received  12  weeks' 
compensation  for  the  loss  of  "at  least  one  phalange  of  a  fin- 
ger" in  addition  to  the  amount  for  disability.  Afterwards 
blood  poisoning  developed  and  he  died.  The  insurer  con- 


DISABILITY  171 

tended  that  the  payment  for  loss  of  the  finger  should  be  de- 
ducted from  the  compensation  awarded  to  the  widow.  The 
court,  however,  disallowed  this  deduction,  since  the  pay- 
ment for  12  weeks  for  the  loss  of  a  part  of  a  finger  is  ex- 
pressly stated  to  be  "in  addition  to  all  other  compensation." 

In  Sinnes  v.  Doggett  80  Wash.  673,  142  Pac.  5,  the  in- 
dustrial insurance  commission  awarded  compensation  for 
partial  disability  in  the  amount  of  $1,200,  in  addition  to  $45 
for  loss  of  time,  to  Thomas  Sinnes,  for  the  loss  of  several 
fingers  on  each  hand.  He  appealed,  the  superior  court  of 
King  County  affirmed  the  award,  and  he  again  appealed, 
contending  that  his  disability  was  total  and  permanent. 

The  accident  occurred  while  he  was  in  the  employ  of 
the  Moore  Logging  Co.  The  compensation  act  provides  that 
permanent  total  disability  means  the  loss  of  both  legs  or 
both  arins,  or  one  leg  and  one  arm,  total  loss  of  eyesight, 
paralysis,  or  other  condition  permanently  incapacitating 
the  workman  from  performing  any  work  at  any  gainful  oc- 
cupation. It  also  states  that  permanent  partial  disability 
means  the  loss  of  either  one  foot,  one  leg,  one  hand,  one  arm, 
one  eye,  one  or  more  fingers,  etc. ;  and  that  for  permanent 
partial  disability  the  workman  shall  receive  compensation 
in  a  lump  sum  in  an  amount  equal  to  the  extent  of  the  in- 
jury, to  be  decided  in  the  first  instance  by  the  department, 
and  not  in  any  case  to  exceed  the  sum  of  $1.500. 

The  supreme  court  held  that  the  questions  involved  were 
questions  of  law ;  that  the  injury  was  within  the  definition 
of  permanent  partial  disability,  and  there  was  no  reason  for 
the  granting  of  a  jury  trial;  and  that  the  amount  of  com- 
pensation was  within  the  discretion  of  the  commissioners, 
limited  only  by  the  prescribed  maximum  of  $1,500.  The 
action  of  the  court  below  in  dismissing  the  appeal  was 
therefore  affirmed,  and  the  award  of  $1,200  allowed  to 
stand  as  originally  made. 

For  note  on  injury  to  fingers  including  many  cases  from 
Workmen's  Compensation  Boards  and  Commissions  see  8 
N.  C.  C.  A.  352-368. 


172  MANUAL  OF  COMPENSATION  LAW 

§  148.  Injuries  to  Eyes. 

In  Vishney  v.  Empire  Steel  &  Iron  Go.  87  N.  J.  Law 
481,  95  Atl.  143,  John  Vishney  petitioned  for  compensa- 
tion against  the  company  named,  his  employer,  and  the 
company  appealed  from  a  judgment  fixing  compensation. 
The  employee  was  blinded  by  a  powder  blast,  which  re- 
sulted in  the  loss  of  four-fifths  of  the  use  of  both  eyes.  His 
average  wages  were  $11.66  per  week.  The  accident  oc- 
curred December  15,  1913.  Two  hearings  were  had  upon 
the  matter.  At  the  first,  on  April  27,  1914,  medical  wit- 
nesses testified  that  the  conjunctivitis  from  which  the  em- 
ployee was  suffering  would,  in  their  opinion,  yield  to  hos- 
pital treatment  in  three  months.  The  employee  was  there- 
fore at  this  time  awarded,  for  temporary  disability,  one- 
half  his  weekly  wages  from  the  time  of  the  accident  to  that 
of  the  hearing  to  be  paid  in  a  lump  sum,  and  the  same 
weekly  amount,  $5.88,  to  be  paid  weekly  for  13  weeks  addi- 
tional. Leave  was  given  him  to  apply  to  the  court  at  the 
end  of  that  time  if  a  cure  had  not  been  effected.  This  he  did, 
and  it  was  shown  that  permanent  disability  existed  to  the 
extent  of  80  per  cent,  of  the  use  of  each  eye.  The  schedule 
compensation  for  the  loss  of  one  eye  being  50  per  cent  of 
wages  for  100  weeks,  he  was  awarded  this  compensation 
for  80  weeks  for  each  eye,  or  160  weeks  in  all,  to  run  from 
the  termination  of  the  payments  for  temporary  disability 
on  July  27,  1914. 

The  employee  claimed  that  it  was  erroneous  to  find  that 
the  temporary  disability  ceased  on  July  27,  1914.  The  court 
held  that  there  were  facts  to  warrant  such  a  finding,  and 
defined  temporary  disability  in  the  following  language  of 
Judge  Kalisch: 

"Temporary,  as  distinguished  from  permanent  disabil- 
ity, under  the  workmen's  compensation  act,  is  a  condition 
that  exists  until  the  injured  workman  is  as  far  restored  as 
the  permanent  character  of  the  injuries  will  permit.  An 
apt  illustration  is  a  case  where  there  has  been  a  loss  of  both 
arms.  The  temporary  disability  to  be  considered  in  such  an 


DISABILITY  173 

instance  is  the  physical  state  of  the  patient  until  the  stumps 
are  healed  and  he  is  able  to  get  about.  The  actual  disability 
to  do  effective  work  is  the  same  in  either  case  and  continues 
for  life.  (Birmingham  v.  Lehigh  &  Wilkes-Barre  Coal  Co. 
95  Atl.  242.)" 

That  compensation  for  the  permanent  disability  had  not 
been  awarded  for  a  long  enough  period  was  determined  by 
the  court  as  follows: 

"In  the  present  case  it  was  not  ascertained  until  the 
second  hearing  whether  or  not  the  prosecutor's  injuries 
would  be  of  a  permanent  character. 

The  trial  judge  proceeded  on  the  theory  that  because 
the  compensation  for  the  loss  of  an  eye  is  fixed  at  50  per 
cent  of  the  weekly  earnings  for  100  weeks,  compensation 
for  the  loss  of  or  injury  to  each  eye  should  be  considered 
separately  under  that  clause,  and,  haying  found  that  each 
eye  had  lost  four-fifths  of  its  usefulness,  he  calculated  the 
number  of  weeks  for  which  compensation  should  be  made 
on  the  basis  of  an  80  per  cent  loss  of  each  eye,  which  would 
make  80  weeks  for  each  eye,  or  a  total  of  160  weeks  for 
both. 

The  trial  judge  evidently  overlooked  that  provision  of 
the  statute  which,  among  other  things,  provides  that  the 
loss  of  both  eyes  shall  constitute  a  permanent  disability, 
and  that  compensation  shall  be  made  therefor  according  to 
clause  b. 

Reverting  to  clause  b  we  find  that  the  compensation 
for  the  loss  of  both  eyes  shall  not  exceed  400  weeks.  It  ap- 
pearing that  there  was  a  loss  of  usefulness  of  both  eyes  to 
the  extent  of  80  per  cent  the  prosecutor  was  entitled  to  com- 
pensation for  320  weeks." 

In  Hirschkorn  v.  Fiege  Desk  Co.  184  Mich  239,  150  N. 
W.  851,  the  facts  were  that  while  he  was  operating  a  ma- 
chine for  the  company  named,  a  piece  of  emery  flew  into 
the  eye  of  the  employee  Hirschkorn.  The  emery  was  re- 
moved, but  inflammation  and  iritis  set  in,  and  he  was  to- 
tally incapacitated  for  nine  weeks.  A  scar  on  the  cornea 


174  MANUAL  OF  COMPENSATION  LAW 

over  the  pupil  remained,  which  diminshed  the  vision  of  that 
eye  between  one-third  and  one-half.  The  employee,  how- 
ever, went  to  work  at  the  same  employment  and  wages  as 
before.  The  board  awarded  him  compensation  for  the  total 
disability,  and  for  35  weeks  in  addition  for  partial  disabil- 
ity, as  the  fair  proportion  of  the  100  weeks  provided  for  the 
entire  loss  of  an  eye. 

Section  10  of  the  workmen's  compensation  act  of  Michi- 
gan, relating  to  partial  disability,  provides  for  payment  of 
one-half  the  difference  between  the  wages  which  the  in- 
jured employee  earns  after  the  injury  and  that  previously 
earned,  and  also  contains  a  schedule  of  payments  for  spe- 
cific injuries,  which  does  not  mention  injuries  to  the  eye 
less  than  total  loss  of  vision.  Since  neither  of  these  pro- 
visions applied  to  the  present  case,  the  court  held  that  the 
additional  compensation  should  not  be  allowed. 

It  was  held  under  the  Mass.  Act  that  an  award  for  par- 
tial disability  should  be  based  on  the  difference  between  the 
employee's  earnings  before  and  after  the  injury,  but  in  case 
the  employee  is  earning  less  because  of  a  depression  in 
business,  the  loss  occasioned  by  this  depression  should  be 
deducted  from  the  difference  between  what  he  earned  before 
and  what  he  earned  after  the  injury.  In  re  Durney  222 
Mass.  461,  111  N.  E.  166. 

Where  after  an  injury  an  employee  had  10  per  cent  nor- 
mal vision  with  glasses  and  50  per  cent  without  them.  The 
injury  did  not  amount  to  a  total  loss  of  the  eye  and  he  was 
entitled  only  for  partial  loss  as  measured  by  lessened  earn- 
ings. Cline  v.  Studebaker  Corp'n.  155  N.  W.  519  (Mich.)  L. 
R.  A.  1916C  1139. 

In  International  Harvester  Co.  v.  Industrial  Comm.  157 
Wis.  167,  147  N.  W.  53,  Ann.  Gas.  1916B  330,  5  N.  C.  C.  A. 
822,  the  facts  were  that  Ernest  Koenig,  an  employee  of 
the  company  named,  was  injured  March  5,  1912,  by  a  par- 
ticle of  steel  entering  one  of  his  eyes.  The  piece  of  steel 
was  removed  by  a  magnet,  but  the  employee  was  incapaci- 
tated for  work  for  10  weeks  and  4  days,  and  there  was  per- 


DISABILITY  175 

manent  impairment  of  the  sight  of  the  eye.  He  was  paid 
for  his  loss  of  time  and  doctor's  bills  as  provided  by  the  act. 
He  resumed  work  for  the  company  at  his  former  employ- 
ment, operating  a  drill  press,  and  up  to  the  time  of  the 
hearing  for  compensation  had  earned  apparently  a  little 
more  per  day  at  piecework  after  the  resumption  of  work 
than  before  thp  accident.  The  industrial  commission  in 
its  decision  said  that  it  was  "satisfied  from  its  investigation 
of  injuries  of  this  character  and  from  the  testimony  that  a 
man  injured  as  applicant  was  injured  can  perform  the  la- 
bor that  applicant  was  doing  prior  to  the  injury  without 
difficulty."  It  further  said:  "The  commission  is  also  con- 
vinced that  in  most  employments  a  one-eyed  man  is  phy- 
sically able  to  earn  substantially  the  same  wage  as  a  man 
with  two  eyes." 

The  commission  also  found  that  the  applicant's  loss  of 
wage  because  of  permanent  partial  disability  was  $2.16  per 
week,  and  ordered  the  company  to  pay  him  $1.41  per  week 
for  15  years.  This  finding  was  based  on  the  likelihood  that 
it  would  be  less  easy  for  the  employee  to  secure  work  on 
account  of  his  defective  sight.  The  statute  provides  that 
the  loss  in  wages  for  which  compensation  may  be  made 
shall  consist  of  such  percentage  of  the  average  weekly 
earnings  of  the  injured  employee  as  shall  fairly  represent 
"the  proportionate  extent  of  the  impairment  of  his  earning 
capacity  in  the  employment  in  which  he  was  working  at 
the  time  of  the  accident." 

The  court  discussed  the  grounds  on  which  the  award  of 
the  commission  can  be  set  aside,  which  are  stated  in  the 
statute  as  follows:  (1)  That  the  commission  acted  in  ex- 
cess of  its  powers;  (2)  that  the  award  was  procured  by 
fraud ;  and  (3)  that  the  findings  of  fact  do  not  support  the 
award.  It  held  that  the  first  ground  would  cover  cases 
where  the  commission  made  a  finding  of  fact  without  any- 
thing upon  which  to  base  it,  and  after  full  consideration 
of  the  supposed  basis  of  the  finding  that  the  employee's  de- 
ficiency in  earning  power  amounted  to  15  per  cent  of  his 


176  MANUAL  OF  COMPENSATION  LAW 

former  wages,  which  basis  consisted  largely  of  the  results 
of  investigations  made  by  the  commission  itself,  and  con- 
sideration of  the  statutes  of  other  States,  etc.,  the  court 
decided  that  there  was  no  material  evidence,  also  that  the 
loss  of  earning  power  of  a  man  with  one  eye  was  not  the 
subject  of  judicial  notice;  and  that  the  judgment  should 
be  reversed  and  the  cause  remanded  to  the  commission  for 
further  hearing,  or  judgment  entered  for  the  Harvester 
company,  as  the  circuit  court  should  determine. 

Three  judges  dissented,  holding  that  "it  was  in  evi- 
dence that  the  claimant  lost  an  eye,  and,  in  the  exercise  of 
common  knowledge  and  observation,  the  commission  was 
authorized  to  infer  from  this  that  his  capacity  to  obtain 
employment  was  impaired." 

In  Czuprinski  v.  Mechanical  Mfg.  Co.  111.  Ind.  Bd.  Nov. 
23,  1914,  6  N.  C.  C.  A.  889,  the  Illinois  Board  awarded  com- 
pensation for  a  50  per  cent  impairment  of  vision  after  re- 
viewing the  above  case. 

In  Feldman  v.  Braunstein  (N.  J.)  93  Atl.  679,  Samuel 
Feldman  brought  action  against  Charles  Braunstein  under 
the  workmen's  compensation  act.  Judgment  was  for  the 
petitioner  in  the  court  of  common  pleas  of  Hudson  County. 
The  judge  found  that  the  injury  was  temporary  in  charac- 
ter if  an  operation  was  performed,  but  that  if  an  operation 
was  not  performed  the  injury  was  permanent,  and  amounted 
to  90  per  cent  of  the  loss  of  an  eye.  He  therefore  deter- 
mined that  the  injury  was  temporary,  and  that  the  peti- 
tioner was  entitled  to  compensation  during  the  disability, 
not  to  exceed  300  weeks.  The  compensation  for  loss  of  an 
eye  is  for  100  weeks.  The  supreme  court  reversed  the  judg- 
ment, holding  that  compensation  should  be  for  the  last- 
named  period  on  a  basis  of  permanent  disability,  as  the  de- 
termination could  be  based  only  upon  the  facts  before  the 
court  and  existing  at  that  time,  without  reference  to  the 
probable  effects  of  an  operation.  It  pointed  out  that  if  the 
operation  was  had  and  the  disability  cured  prior  to  100 


DISABILITY  177 

weeks,  a  modification  of  the  decree  reducing  the  period  of 
compensation  might  be  secured  by  petition. 

In  McCoy  v.  Michigan  Screw  Co.  180  Mich.  454,  147  N. 
W.  572,  L.  R.  A.  1916A  323,  5  N.  C.  C.  A.  455,  the  loss  of 
the  sight  of  an  eye,  after  an  injury  by  a  flying  particle  of 
steel,  caused  by  a  gonorrheal  infection  in  the  eye  due  to 
the  fact  that  the  injured  man  who  had  this  disease  rubbed 
it,  was  held  not  to  be  compensable. 

For  note  on  loss  of  or  injury  to  eyes,  citing  further 
cases,  see  6  N.  C.  C.  A.  880-899. 

§  149.  Injuries  to  the  Ear. 

Almost  every  Workmen's  Compensation  Act  provides  a 
definite  schedule  of  injuries  such  as  the  loss  of  a  hand,  fin- 
ger, arm,  foot,  toe,  or  leg.  A  few  of  them  provide  specific 
benefits  for  impairment  of  hearing,  for  instance,  Wiscon- 
sin, Oregon,  Indiana,  Connecticut,  Colorado,  Minnesota,  Ne- 
vada and  Vermont.  But  none  of  the  acts  provide  in  their 
schedules  of  specific  injuries  for  loss  of  an  ear. 

The  majority  of  the  acts  contain  a  provision  similar  to 
the  Kentucky  act  which  covers  "all  other  cases  of  perma- 
nent partial  disability,  including  any  disfigurement  which 
will  impair  the  future  usefulness  or  occupational  opportuni- 
ties of  the  injured  employee."  Except  for  medical  attention 
and  injuries  scheduled,  there  is  no  compensation  without 
disability.  If  an  injury  to  the  ear  incapacitated  a  man  from 
work,  compensation  would  be  payable  under  the  act  as  in 
any  other  case  of  disability.  But  in  order  to  obtain  com- 
pensation for  the  loss  of  or  injury  to  an  ear,  or  for  impair- 
ment of  hearing,  it  would  generally  be  necessary  to  deter- 
mine, that  the  injury  was  permanent,  that  it  partially  dis- 
abled the  employee,  and  in  cases  of  disfigurement,  that  it 
will  impair  his  future  usefulness  or  occupational  opportuni- 
ties. 

Until  amended  in  1916  the  New  York  Act  did  not  have 
a  disfigurement  clause  and  it  was  held  that  a  man  who  lost 
part  of  an  ear  from  the  bite  of  a  horse  had  no  remedy  under 
the  old  act  and  could  sue  at  common  law.  Shinnick  v. 


178  MANUAL  OF  COMPENSATION  LAW 

Clover  Farms  Co.  169  App.  Div.  236,  154  N.  Y.  Supp.  423, 
9  N.  C.  C.  A.  342. 

§  150.  Disfigurement. 

In  order  to  come  within  the  act  it  is  usually  necessary 
to  prove  the  fact  of  disfigurement  and  the  impairment  of 
future  usefulness  or  occupational  opportunities  before  a 
claim  for  compensation  on  this  ground  is  allowable.  Whether 
or  not  there  is  any  disfigurement  is  in  each  case  a  question 
of  fact. 

It  has  been  held  that  where  an  employee  in  operating  a 
press  lost  .the  tips  of  two  fingers  of  his  right  hand,  im- 
pairing the  sense  of  feeling,  and  permanently  incapacitat- 
ing him  from  doing  the  particular  kind  of  specialized  work 
he  did  at  the  time  of  the  accident,  there  was  such  disfig- 
urement as  entitled  him  to  compensation  under  the  Illinois 
law.  He  was  allowed  $454.08.  Stevenson  v.  Illinois  Watch 
Co.,  186  111.  App.  418,  5  N.  C.  C.  A.  858.  The  Illinois  board 
held  in  one  case  that  the  loss  of  a  tooth  under  the  facts  did 
not  constitute  disfigurement.  Niemark  v.  West  Coast  R. 
&  Mfg.  Co.,  5  N.  C.  C.  A.  859.  But  where  two  artificial  and 
two  natural  teeth  in  the  front  of  the  mouth  were  knocked 
out,  the  same  board  held  otherwise  and  allowed  $50  for  the 
disfigurement.  Rupczynski  v.  Wisconsin  Steel  Co.,  5  N. 
C.  C.  A.  860.  The  same  board  allowed  $154  for  a  scar  which 
after  an  injury  disfigured  the  top  of  a  man's  head.  Harp- 
stead  v.  Alexander,  5  N.  C.  C.  A.  861. 

On  this  point  in  the  case  of  Ball  v.  Hunt  &  Sons,  Ltd., 
28  T.  L.  R.  428,  5  B.  W.  C.  C.  459,  5  N.  C.  C.  A.  862,  the 
English  court  said :  "The  weekly  payment  may  be  ended  or 
diminished  or  increased,  according,  presumably,  as  the 
ability  to  earn  has  completely  returned,  has  increased,  or 
has  diminished.  There  would  be  no  meaning,  it  would 
appear  to  me,  in  these  provisions  making  the  amount  of 
wages  which  were,  are,  or  can  be  earned  so  much  the  basis 
of  compensation  if  the  market  for  the  workman's  labor 
has  to  be  left  out  of  consideration.  The  earning  of  wages 
depends  as  much  on  the  demand  for  the  workman's  labor  as 


DISABILITY  179 

it  does  upon  his  physical  ability  to  work.  If,  because  of 
his  apparent  physical  defects,  no  one  will  employ  him,  how- 
ever effective  he  may  be  in  fact,  he  has  lost  the  power  to 
earn  wages  as  completely  as  if  he  was  paralyzed  in  every 
limb." 

It  was  held  in  Illinois  that  an  employee  who  lost  a  fore- 
finger and  injured  his  thumb  as  the  result  of  an  accident, 
and  after  fifteen  weeks  was  able  to  earn  as  much  as  before 
he  was  injured,  could  recover  an  additional  sum  for  disfig- 
urement of  his  hand.  Waters  v.  Pekroehler  Mfg.  Co.,  187 
111.  App.  548. 

Disfigurement  is  a  fixed  condition  and  therefore  a  settle- 
ment once  made  in  regard  to  it  with  the  approval  of  the 
board  is  final  and  not  subject  to  review  as  are  other  cases 
where  the  disability  is  changeable  in  degree. 

For  note  on  disfigurement  as  a  ground  for  compensation 
see  5  N.  C.  C.  A.  858-865. 


CHAPTER  V 

AVERAGE  EARNINGS 

Section. 

151.  Average  earnings  as  basis  for  compensation  in  general. 

152.  Average  weekly  wages  as  a  question  of  fact. 

153.  General  income  as  affecting  earnings. 

154.  Effect  of  "laying  off." 

155.  What  is  "seasonal  occupation." 

156.  Grade  of  employment  as  criterion  for  average  earnings. 

157.  Regularly  employed  in  a  higher  grade  of  work. 

158.  Wages  earned  from  more  than  one  employer. 

159.  When  weekly  wages  not  fixed  under  New  Jersey  act. 

160.  Regulations  of  labor  unions  as  affecting  average  earnings. 

161.  Idleness  as  a  result  of  normal  stoppage  of  work  or  general 

holidays. 

162.  Various  outside  influences  affecting  earnings. 

163.  Meaning  of  "average  weekly  wages,"  and  "full  time." 

§  151.  Average   Earnings  As  Basis  for  Compensation   In 
General. 

All  compensation  is  based  on  average  earnings,  but  the 
method  of  arriving  at  what  this  amount  shall  be  differs 
somewhat  under  the  various  compensation  acts.  The  meth- 
od provided  by  any  particular  act  is  of  course  the  only 
test  for  arriving  at  the  basis  of  compensation  in  that  par- 
ticular jurisdiction.  While  in  some  States,  as  Illinois  and 
Iowa,  the  words  "average  annual  earnings;"  in  some,  as 
Oregon  and  Washington,  the  words  "average  monthly 
wages ;"  in  some  as  in  New  Jersey,  the  words  "average  daily 
earnings;"  still  in  the  great  majority  of  the  States  the 
words  "average  weekly  wages"  are  used,  although  these 
may  differ  slightly  in  the  method  prescribed  for  computing 
them. 

Some  States  proscribe  elaborately  how  "average  weekly 
wages"  shall  be  computed  under  given  variations  in  condi- 


AVERAGE  EARNINGS  181 

tions  of  employment  and  some,  as  Kentucky,  provide  gen- 
erally and  leave  it  to  the  board  to  determine  by  rules  what 
the  method  of  computation  shall  be. 

In  a  great  many  States  average  weekly  wages  are  com- 
puted by  multiplying  the  daily  earnings  by  300,  the  aver- 
age number  of  working  days  in  the  year,  and  then  dividing 
this  result  by  52.  And  if  this  method  is  not  feasible,  then 
the  average  wages  of  another  person  in  similar  employ- 
ment in  the  same  locality  are  taken  as  the  basis.  This  is 
not  stated  as  a  general  rule — for  such  a  rule  can  not  be  laid 
down — but  merely  as  an  example  of  a  method  frequently 
provided  for. 

Thus,  although  there  is  this  variance  among  the  differ- 
ent acts,  still  a  decision  of  one  jurisdiction  upon  a  given 
state  of  facts,  is  often  helpful  in  throwing  light  upon  the 
provisions  of  any  particular  act  under  consideration. 

§  152.  Average  Weekly  Wage  a  Question  of  Fact. 

What  the  average  weekly  wages  are  is  a  question  of 
fact  and  if  there  is  evidence  to  support  the  conclusion 
reached  it  will  not  be  interfered  with  (Williams  v.  Wynn- 
stay  Collieries  Co.,  3  B.  W.  C.  C.  473) ;  but  the  computation 
must  be  made  upon  the  basis  proscribed  by  the  law. 

§  153.  General  Income  As  Affecting  Earnings. 

It  has  been  held  in  England  that  where  the  giving  and 
receiving  of  tips  is  known  to  the  employer,  the  money  so 
received  may  be  included  in  average  weekly  earnings.  Penn 
v.  Spiers  &  Pond,  1  B.  W.  C.  C.  401 ;  Knott  v.  Tingle,  Jacobs 
&  Co.,  4  B.  W.  C.  C.  55 ;  Haines  v.  Corbet,  5  B.  W.  C.  C.  372, 
L.  R.  A.  1916A  (note)  374.  The  contrary  was  held  in  Cali- 
fornia because  the  contract  of  hiring  did  not  contemplate 
gratuities  or  tips  as  part  of  earnings.  Reynolds  v.  Smith, 

1  Cal.  Ind.  Ace.  Comm.  Dec.  (No.  3, 1914)  2,  9  N.  C.  C.  A.  90. 

In  England  board  and  lodging  when  furnished  in  addi- 
tion to  wages  are  considered  in  determining  average  weekly 
earnings  at  the  cost  of  the  food  to  the  employer  and  a 
reasonable  allowance  for  lodging.  Rosenquist  v.  Bouring, 

2  K.  B.  108,  24  Times  L.  R.  504.    But  in  another  case  in  the 


182  MANUAL  OF  COMPENSATION  LAW 

same  court  it  was  said  that  the  true  test  was  the  actual 
value  to  the  workman  of  the  board  furnished  by  the  em- 
ployer. Dothie  v.  MacAndrew  &  Co.,  1  K.  B.  803,  L.  R.  A. 
1916A  (note)  160. 

When  a  workman  pays  wages  to  a  boy  hired  by  him  to 
assist  in  his  work,  the  English  court  has  held  that  these 
wages  can  be  deducted  from  the  workman's  average  weekly 
earnings.  Roper  v.  Freke,  31  T.  L.  R.  507,  9  N.  C.  C.  A.  86. 

The  amounts  paid  by  a  miner  to  his  helper  should  be 
deducted  to  obtain  the  average  weekly  wages  of  the  miner. 
McKee  v.  Stein,  47  Scot.  L.  R.  39,  3  B.  W.  C.  C.  544,  Boyd's 
Work.  Comp.,  §  529. 

Average  weekly  earnings  do  not  include  weekly  pay- 
ments by  way  of  compensation  for  a  previous  accident. 
Gough  v.  Crawshay  Bros.,  1  K.  B.  441,  1  B.  W.  C.  C.  374, 
L.  R.  A.  1916  A  374. 

A  pension  from  the  United  States  government  on  ac- 
count of  services  rendered  in  the  army  or  navy  or  on  account 
of  disability  incurred  in  the  military  or  naval  service  will 
not  be  considered  in  determining  the  "average  weekly  wage" 
or  in  determining  the  amount  of  compensation.  Re  Har- 
riett H.  Horn,  Claim  No.  1013,  Ohio  St.  Lia.  Bd.  Awd.,  De- 
cember 13,  1912.  Nor  can  an  amount  received  from  the 
poor  fund  figure  in  average  weekly  wages.  Gilroy  v.  Mackie, 
46  Scot.  L.  R.  325,  L.  R.  A.  1916A  374. 

Value  of  horse  hire  when  an  employee  was  engaged  at 
$5  per  day  out  of  which  he  agreed  to  furnish  his  own  horse, 
was  not  allowed  as  wages.  Kid  v.  N.  Y.  Motion  Picture  Co., 
1  Cal.  Ind.  Ace.  Comm.  Dec.  (No.  22,  1914)  2,  9  N.  C.  C. 
A.  87. 

Where  an  employee  received  $3.50  per  day  for  his  ser- 
vices and  an  allowance  of  $1.25  additional  for  the  use  of  the 
automobile,  it  was  held  that  the  allowance  for  the  machine 
was  rent  and  could  not  be  considered  in  determining  aver- 
age weekly  wages.  Clark  v.  Los  Angeles  Co.,  1  Cal.  Ind. 
Ace.  Comm.  Dec.  (No.  24, 1914)  62,  9  N.  C.  C.  A.  88. 

,  Money  paid  by  an  injured  employee  to  an  assistant  was 


AVERAGE  EARNINGS  183 

held  not  to  be  a  part  of  his  earnings,  as  a  basis  for  de- 
termining compensation  under  the  Minnesota  Act.  State 
v.  District  Court  of  Sibley  County,  151  N.  W.  182,  128 
Minn.  486. 

In  New  Jersey  an  employee  received  $15.00  a  week  and 
board,  which  the  court  value  at  $3.00  a  week.  It  was  held 
that  his  compensation  should  be  50  per  cent,  of  $18.00 
instead  of  $15.00.  Baur  v.  Court  of  Common  Pleas,  88 
N.  J.  Law  128,  95  Atl.  627. 

Where  a  plumber  was  called  to  the  assistance  of  officers 
of  a  village  by  the  village  marshal  and  was  killed,  the 
basis  for  computing  the  amount  of  compensation  was  not 
his  earning  capacity  as  a  plumber,  but  that  of  one  doing 
policeman's  duty  in  the  same  or  neighboring  locality.  Vil- 
lage of  West  Salem  v.  Ind.  Comm.  of  Wis.  155  N.  W.  929. 

See  further  note  in  L.  R.  A.  1916A  373-374  and  159 ;  9 
N.  C.  C.  A.  86-90. 

§  154.  Effect  of  "Laying  Off." 

The  English  rule  on  this  question  is  stated  in  the  case 
of  Anslow  v.  Carinock-Chase  Colliery  Co.,  Ltd.,  2  B.  W. 
C.  C.  365,  6  N.  C.  C.  A.  809,  the  court  said :  "The  object  of 
the  act  of  Parliament  was  to  compensate  a  workman  for 
his  incapacity  to  earn,  which  is  to  be  measured  by  what  he 
could  earn  under  the  conditions  prevailing  before  and  up 
to  the  time  of  the  accident.  If  the  workman  takes  a  holiday 
and  forfeits  his  wages,  that  does  not  interfere  with  what 
he  can  earn.  It  is  only  that  for  a  month  .he  did  not  choose 
to  work.  But  if  it  is  one  of  the  incidents  of  his  employ- 
ment to  stop  for  a  month,  then  he  can  not  earn  wages  for 
that  time  in  that  employment,  and  his  capacity  of  earning 
is  less.  I  agree  with  the  Master  of  the  Rolls  when  he  says 
'In  my  opinion  the  true  test  is  this,  what  were  his  earnings 
in  a  normal  week,  regard  being  had  to  the  known  and 
recognized  incidents  of  the  employment?  If  work  is  dis- 
continuous, that  is  an  element  which  can  not  be  over- 
looked.' " 

See  further  note,  6  N.  C.  C.  A.  807-817. 


184  -   MANUAL  OF  COMPENSATION  LAW 

§  155.  What  Is  "Seasonal  Occupation." 

Any  occupation  which  afforded  no  employment,  regularly 
during  certain  seasons  of  the  year  or  at  regular  set  times 
durings  the  year  would  be  a  "seasonal"  occupation.  Log- 
ging, lumbering  and  coal  mining,  under  certain  conditions, 
are  a  few  examples  of  this  class  of  occupations.  In  the 
case  of  Andrewjwski  v.  Wolverine  Coal  Co.,  182  Mich.  298, 
148  N.  W.  684,  6  N.  C.  C.  A.  807,  the  court  said:  "The 
mine  in  question  and  other  mines  in  this  district  do  not 
run  continuously  during  the  entire  year ;  some  entirely  sus- 
pend operations  for  several  months  during  the  summer  and 
others  do  not  operate  during  a  portion  of  each  month,  in  a 
measure  caused  by  the  fact  that  operations  are  controlled 
by  the  sales  of  the  product,  which  depend  entirely  upon 
orders.  Operations  also  depend  upon  weather  conditions. 
.  .  .  The  price  paid  miners  is  regulated  by  what  is 
called  a  'scale'  made  between  the  operators  and  the  union, 
and  one  of  the  things  always  taken  into  consideration  in 
fixing  the  wages  of  miners  in  this  district  is  that  the  mine 
does  not  run  steadily  and  the  miner  can  only  work  when 
it  does  run." 

The  court  held  in  this  case  that  the  average  weekly  earn- 
ings of  the  deceased  were  to  be  ascertained  by  dividing 
his  average  annual  earnings  in  the  mine  by  fifty-two,  and 
that  the  amount  which  he  earned  in  other  employments 
during  the  time  the  mine  was  idle  could  not  be  included. 

§156.  Grade   of   Employment   As   Criterion   for   Average 
Earnings. 

In  Perry  v.  Wright  (Eng.),  1  K.  B.  441,  1  B.  W.  C.  C. 
351,  L.  R.  A.  1916A  (note)  151,  Lord  Cozens-Hardy  said: 

"Having  found  that  the  man  has  a  particular  grade  and 
what  are  the  average  wages  in  that  grade,  there  is  no 
obligation  to  adopt  those  average  wages  as  the  basis  of 
compensation.  The  personal  element  then  comes  in.  It 
will  still  be  open  to  consider  whether  the  individual  work 
man  is  an  average  man  or  is  above  or  below  an  average 
man.  This  mus,t  be  so  where  men  in  a  particular  grade  are 


AVERAGE  EARNINGS  185 

employed  on  piecework.  You  cannot  reject  evidence  of 
the  skill  and  efficiency  of  the  individual  workman.  Where 
payment  is  at  so  much  per  hour  for  every  man  in  a 
particular  grade,  the  skill  and  efficiency  may,  perhaps,  be 
disregarded,  though  I  am  not  prepared  to  say  that  the 
age  and  the  habits  of  the  individual  may  not  have  such  an 
influence  upon  his  chance  of  employment  as  to  deserve 
consideration. 

In  computing  the  average  weekly  earnings  of  a  casual 
laborer,  the  arbitrator  is  not  merely  to  ascertain  the  amount 
of  the  average  weekly  earnings  of  men  employed  in  the 
same  class  of  work  as  the  applicant,  but  regard  must  be 
had  to  the  personal  qualifications  of  the  injured  workman, 
and  if  his  actual  earnings  during  the  past  year  or  any  other 
evidence  showed  that  he  was  in  fact  above  the  average,  that 
must  be  regarded." 

§  157.  Regularly  Employed  In  a  Higher  Grade  of  Work. 

Under  a  provision  of  the  Kentucky  act  if  a  workman, 
at  the  time  of  the  accident,  is  employed,  temporarily,  as  a 
common  laborer  while  his  regular  employment  is  that  of 
stationary  engineer,  for  example,  only  his  average  weekly 
wages  in  this  higher  employment  are  to  be  taken  into  con- 
sideration in  computing  the  compensation  due  him.  But 
this  is  not  the  case  if  his  employment  as  stationary  engineer 
is  only  in  certain  seasons  of  the  year.  It  must  be  his  regu- 
lar and  usual  employment  and  he  must  have  actually  en- 
gaged in  that  occupation  "during  the  year"  just  previous  to 
his  injury. 

§  158.  Wages  Earned  From  More  Than  One  Employer. 

The  question  whether  wages  earned  in  the  service  of  the 
employer,  in  whose  employment  the  accident  occurred,  are 
alone  to  be  considered  in  arriving  at  the  amount  of  average 
weekly  wages;  or  whether  those  earned  in  other  employ- 
ments,  whether  concurrent  with  or  just  prior  or  subsequent 
to  it,  are  also  to  be  considered,  has  been  decided  both  ways 
by  American  courts. 


186  MANUAL  OF  COMPENSATION  LAW 

Under  the  Michigan  statute,  the  first  of  the  above  prop- 
ositions has  been  upheld.  In  Andrewjwski  v.  Wolverine 
Coal  Co.,  182  Mich.  298,  48  N.  W.  684,  6  N.  C.  C.  A.  807, 
the  court  said :  "The  foregoing  consideration  of  these  four 
classifications  shows  that  the  term  'average  annual  earn- 
ings' of  the  injured  employee  as  used  in  this  act  means  his 
average  annual  earnings  in  the  employment  in  which  he 
was  engaged  at  the  time  of  the  injury.  This  appears  so 
clearly  and  emphatically  that  it  is  impossible  to  arrive  at 
any  other  conclusion  and  preserve  what  appears  to  have 
been  the  legislative  intent  to  exclude  other  earnings  in 
different  or  concurrent  employments,  and  thus  be  able  to 
distribute  the  burden  of  compensation  to  each  of  the  several 
industries  wherein  the  injuries  and  deaths  may  occur." 

The  opposite  conclusion  was  reached  in  Gillen  v.  Ocean 
Ace.  &  Guar.  Corp'n,  Ltd.,  215  Mass.  96,  102  N.  E.  346, 
L.  R.  A.  191 6A  371,  where  a  workman  put  in  full  time 
working  for  different  employers  at  various  times.  By 
considering  the  wages  he  earned  from  all  of  the  employers 
his  average  weekly  wage  was  $13.  It  was  only  $4  in  the 
employment  where  he  was  injured.  The  court  held  that 
he  was  entitled  to  the  $13  basis,  although  the  act  did  not 
specifically  so  provide,  saying: 

"Although  not  stated  in  precise  words,  we  think  that 
the  general  import  of  the  act  is  to  base  the  remuneration 
to  be  paid  upon  the  normal  return  received  by  workmen 
for  the  grade  of  work  in  which  the  particular  workman 
may  be  classified.  This  is  a  case  where  it  is  'impracticable' 
to  reach  a  result  which  shall  be  fair  to  the  workman  to  the 
extent  intended  by  the  act  of  giving  him  compensation  for 
average  weekly  earnings  in  any  other  way  than  by  follow- 
ing the  course  pointed  out  in  the  final  clause  of  the  defini- 
tion. 

This  is  not  a  case  where  the  usual  employment  of  the 
employee  is  only  two  or  three  days  in  a  week,  as  pointed 
out  in  White  v.  Wiseman  [1912]  3  K.  B.  352,  359,  but  a 
case  where  the  condition  of  the  workman  is  continuous 


AVERAGE  EARNINGS  187 

labor  in  regular  employment  with  different  employers.  The 
loss  of  his  capacity  to  earn,  as  demonstrated  by  his  conduct 
in  such  regular  employment,  is  the  basis  upon  which  his 
compensation  should  be  based." 

Under  the  English  act  as  extended  by  amendment  of 
1906,  it  is  expressly  stated  that  consideration  may  be  given 
in  a  proper  case  to  earnings  from  employers  other  than  the 
one  from  whom  compensation  is  sought.  But  it  has  been 
held  that  these  earnings  from  others  cannot  be  considered 
in  arriving  at  average  weekly  earnings,  unless  they  are 
made  under  a  contract  of  employment.  Simmons  v.  Heath 
Laundry  Co.  (Eng.),  1  K.  B.  543,  3  B.  W.  C.  C.  200. 

For  note  dealing  with  these  questions  see  L.  R.  A.  1916A 
373. 

§  159.  When  Weekly  Wages  Not  Fixed  Under  New  Jersey 
Act. 

In  Smolensk!  v.  Eastern  Coal  Dock  Co.,  87  N.  J.  Law 
26,  93  Atl.  85,  9  N.  C.  C.  A.  531,  the  only  dispute  was  as  to 
the  amount  of  wages  on  which  the  compensation  should  be 
based.  The  man  was  at  the  time  of  ;the  injury  employed  as 
a  car  rider  at  25  cents  an  hour.  At  other  times  he  earned 
larger  and  smaller  rates,  and  his  work  was  irregular,  so 
that  the  employer  claimed  that  his  wages  should  not  be 
considered  to  be  more  than  $12.40  per  week,  while  the 
judge  of  the  court  of  common  pleas  of  Middlesex  County 
determined  that  they  were  $15  per  week,  on  the  basis  of 
25  cents  an  hour  for  10  hours  a  day  and  six  days  a  week. 
The  court  in  conclusion  said : 

"The  language  indicates  that,  in  a  case  where  weekly 
wages  are  not  fixed,  they  shall  be  taken  to  be  six  times  the 
daily  wages,  and  that  the  daily  wages  shall  be  the  wages 
for  a  working  day  of  ordinary  length,  excluding  overtime. 
We  think  it  may  fairly  be  held  that  the  legislature  meant 
that  the  daily  wages  should  be  taken  to  be  what  would  be 
earned  by  working  for  the  ordinary  number  of  hours,  and 
that  the  employee  was  not  to  lose  by  reason  of  enforced 


188  MANUAL  OF  COMPENSATION  LAW 

idleness  during  some  of  those  hours,  nor  to  gain  because  on 
some  days  he  worked  overtime. 

Wages,  the  legislature  said,  must  be  construed  to  be  the 
money  rate  at  which  the  services  were  recompensed.  What 
is  to  be  considered  is  not  the  recompense  in  fact  received, 
but  the  rate  which  the  contract  of  hiring  fixed,  whether  that 
rate  was  in  fact  realized  for  the  whole  time  or  not.  We 
think  that  in  an  employment  and  a  community  where  the 
regular  working  week  was  six  days  of  10  hours  each,  and 
the  workman  was  paid  25  cents  an  hour,  the  natural  con- 
clusion of  most  men,  if  they  tried  to  reduce  the  hourly  rate 
to  a  weekly  rate,  would  be  that  the  weekly  rate  was  $15. 
The  truth  is,  there  is  no  weekly  rate,  but  we  are  forced  by 
the  statute  to  fix  one  in  order  ,to  determine  the  compensa- 
tion to  which  the  workman  or  his  dependents  are  entitled. 
Under  this  compulsion  we  can  think  of  no  better  method." 

§  160.  Regulations  of  Labor  Unions  As  Affecting  Average 
Earnings. 

In  Thompson  v.  Richard  Johnson  &  Nephew,  Ltd.,  7  B. 
W.  C.  C.  479,  11  N.  C.  C.  A.  (note)  678,  a  man  was  injured 
while  at  work  on  a  wire  drawing  machine,  in  operating 
which  he  lost  two  fingers.  He  returned  to  work  and  his 
employers  were  willing  to  give  him  the  old  employment  at 
37s  6d  per  week.  But,  during  his  absence,  a  trades  union  had 
made  a  rule  that  none  could  be  employed  at  such  a  machine 
except  those  regularly  qualified  by  apprenticeship,  which 
this  employee  was  not.  The  employer  gave  him  work  as  a 
laborer  at  21s  per  week.  He  claimed  the  difference  from 
his  employer.  But  the  court  held  that  his  inability  to  earn 
his  former  wages  was  not  due  to  his  injury,  but  to  the 
action  of  the  trade  union,  which  compelled  the  employer  to 
use  only  skilled  workmen  and  members  of  the  union  at  the 
machine,  and  that,  therefore,  the  workman  was  not  entitled 
to  compensation  for  future  disability  at  the  rate  of  wages 
he  earned  at  the  machine  at  .the  time  he  was  injured.  The 
employers  had  paid  him  up  to  the  time  he  was  able  to 


AVERAGE  EARNINGS  189 

return  to  work  upon  a  basis  of  the  wages  earned  at  the 
time  of  his  injury. 

§  161.  Idleness  As  a  Result  of  Normal  Stoppage  of  Work 
Or  General  Holidays. 

In  Anslow  v.  Cannock  Chase  Colliery  Co.,  1  K.  B.  352, 
2  B.  W.  C.  C.  261,  11  N.  C.  C.  A.  669  (note),  it  was  said: 

"The  question  is  in  regard  to  the  way  in  which  the 
average  weekly  earnings  of  a  workman  shall  be  computed 
in  a  case  in  which  a  normal  and  recognized  incident  of  his 
work  was  fourteen  weeks'  stoppage  and  two  weeks  of  gen- 
eral holidays  during  the  year.  The  object  of  the  act  broadly 
stated  is  to  compensate  a  workman  for  his  loss  of  capacity 
to  earn,  which  is  to  be  measured  by  what  he  can  earn  in  the 
employment  in  which  he  is,  under  the  conditions  prevailing 
therein,  before  and  up  to  the  time  of  the  accident.  If  he 
takes  a  holiday  and  forfeits  his  wages  for  a  month,  then 
that  does  not  interfere  with  what  he  can  earn.  So,  too,  if 
there  be  a  casualty  accidentally  stopping  the  work.  But  if 
it  is  part  of  the  employment  to  stop  for  a  month  in  each 
year,  then  he  cannot  earn  wages  in  that  time  in  that  em- 
ployment, and  his  capacity  to  earn  is  less  over  the  year." 

§  162.  Various  Outside  Influences  Affecting  Earnings. 

In  Jones  v.  Ocean  Coal  Co.,  2  Q.  B.  124,  11  N.  C.  C.  A. 
671  (note),  it  was  held  that  where  there  was  a  general 
strike  among  the  workmen  the  period  during  which  the 
strike  continued  could  not  be  counted  in  arriving  at  average 
weekly  earnings. 

In  Bevan  v.  Everglyn  Colliery  Co.,  1  K.  B.  63,  11  N.  C. 
C.  A.  (note)  674,  it  was  held  that  where  an  eight-hour  law 
was  passed  subsequently  to  a  man's  injury,  thereby  lessen- 
ing his  earning  capacity  upon  his  return  to  work,  the  em- 
ployer was  not  liable  for  the  loss  of  wages  occasioned  to 
the  workman  thereby. 

In  James  v.  Ocean  Coal  Co.,  2  K.  B.  213,  11  N.  C.  C.  A. 
(note)  675,  where  a  man  who  was  hurt  was  earning  at  the 
time  £1  4s  per  week  and  returned  at  lighter  work  for  £1 


190  MANUAL  OF  COMPENSATION  LAW 

9s  5d  per  week,  and  the  employer  stopped  compensation  be- 
cause a  fall  in  wages  made  the  latter  sum  the  regular  pay 
for  men  in  the  employment  in  which  the  workman  was 
injured,  the  court  said:  "I  think  the  maximum  fixed  in 
the  first  instance  is  entirely  independent  of  the  subsequent 
fluctuation  of  wages." 

In  Griffiths  v.  Gilber,tsens  &  Co.,  Ltd.,  8  B.  W.  C.  C. 
548,  11  N.  C.  C.  A.  673,  the  court  said:  "It  is  admitted 
that  you  must  exclude  from  consideration  the  14  weeks' 
period  of  the  strike,  during  which,  upon  the  finding  of  the 
learned  county  court  judge,  the  man  was  absent  through 
no  fault  of  his  own.  The  strike  was  due,  as  I  understand, 
not  to  his  own  trade,  but  to  another  trade  to  which  his  trade 
was  related,  and,  therefore,  those  weeks  of  the  strike  are 
excluded." 

In  Turner  v.  Port  of  London  Authority,  6  B.  W.  C.  C.  23, 
11  N.  C.  C.  A.  797,  it  was  held  that  it  was  not  necessary  to 
calculate  average  earnings  with  microscopical  accuracy,  and 
that,  therefore,  8  days  lost  through  illness  in  a  period  of  18 
months'  employment  need  not  be  considered. 

But  in  Hewlett  v.  Hepburn,  16  Times  L.  R.  56  (Eng.), 
11  N.  C.  C.  A.  (note)  798,  where  a  man  was  away  from 
his  work  eleven  weeks  on  account  of  illness,  that  absence 
was  held  sufficient  to  justify  a  finding  that  the  employ- 
ment was  not  continuous  under  the  act  of  1897.  That 
portion  of  the  act  was  amended  in  1906  so  that  now,  under 
the  English  act,  the  question  of  continuous  employment  is 
no  longer  vital,  as  average  earnings  may  be  calculated  from 
wages  earned  from  several  employers. 

In  Carter  v.  Lang,  45  Scot  L.  R.  938,  1  B.  W.  C.  C.  379, 
L.  R.  A.  1916A  (note)  154,  11  N.  C.  C.  A.  (note)  795,  when 
a  workman  had  been  employed  thirteen  weeks,  and  during 
that  time  had  been  absent  two  weeks  on  account  of  illness 
and  two  weeks  on  account  of  general  trade  holidays,  it  was 
apparently  held  that  the  absence  for  illness  should  not  be 
deducted  in  arriving  at  average  weekly  earnings,  but  it  was 
clearly  held  that  the  two  weeks  lost  on  account  of  trade 


AVERAGE  EARNINGS  191 

holidays  should  be  accounted  for  as  follows:  The  amount 
earned  must  be  divided  by  the  number  of  weeks  in  which 
it  was  earned  to  arrive  at  the  average  weekly  earnings, 
and  then  considering  the  holidays  as  two  weeks  out  of  fifty- 
two,  one  twenty-sixth  must  be  deducted  from  the  average 
earnings  so  obtained. 

In  Bailey  v.  Kenworthy,  1  K.  B.  441  (Eng.),  1  B.  W.  C. 
C.  351,  L.  R.  A.  1916A  153  (note),  11  N.  C.  C.  A.  793 

(note),  it  was  held  that  where  an  employee  was  a  piece- 
worker and  where,  during  the  year,  he  was  unable  to  work 
on  account  of  a  break  in  a  canal,  accidents  to  machinery 
and  bank  and  trade  holidays,  it  was  error  .to  divide  the 
amount  earned  during  the  year  by  fifty-two  in  order  to 
arrive  at  average  weekly  earnings,  but  that  the  amount 
received  should  be  divided  by  the  actual  number  of  weeks 
or  parts  of  weeks  in  which  the  work  was  actually  performed 
without  any  reduction  for  the  weeks  when  there  was  a  stop- 
page of  work  due  to  accidents  at  the  plant,  but  that  stop- 
pages on  account  of  recognized  holidays,  when  the  employer 
could  not  be  called  upon  to  furnish  employment,  were  to  be 
considered  in  reduction  in  the  ratio  they  bear  to  the  fifty- 
two  weeks  of  the  year. 

For  notes  dealing  with  the  above  subjects  see  11  N.  C. 
C.  A.  787-801  and  666-680. 

§  163.  Meaning  of  "Average  Weekly  Wages,"  and   "Full 
Time." 

The  Kentucky  statute  provides  that  "compensation  shall 
be  computed  at  the  average  weekly  wage  earned  by  the 
employee  at  the  time  of  the  injury  reckoning  wages  as 
earned  while  working  at  full  time."  The  wages  considered 
must  be  those  which  would  be  received  by  the  employee 
"while  working  at  full  time."  The  result  obtained  by  the 
computation  must  be  the  "average  weekly  wage  earned  by 
the  employee  at  the  time  of  the  injury." 

The  phrase  "while  working  at  full  time,"  may  refer  to 
the  full  number  of  hours  of  work  regularly  performed  in  a 


192  MANUAL  OF  COMPENSATION  LAW 

day  by  the  employee  under  normal  working  conditions. 
Thus,  if  the  regular  working  day  in  the  employment,  where 
a  workman  was  injured,  was  ten  hours,  but  if  on  account 
of  slack  business  conditions  the  working  day  had  been  tem- 
porarily shortened  to  five  hours,  the  employer  would 
nevertheless  be  entitled  to  have  his  average  weekly  wage 
figured  as  if  he  had  actually  worked  ten  hours.  The  daily 
wages  at  full  time  would  then  be  multiplied  by  the  number 
of  days  customarily  worked  in  a  year  and  the  result  divided 
by  52  to  obtain  the  "average  weekly  wage  earned  by  the 
employee  at  the  time  of  the  injury." 

While  such  a  construction  of  "full  time"  is  possible,  it 
would  seem  that  the  better  construction  would  be  to  consider 
full  time  as  the  actual  number  of  working  hours,  per  day 
that  the  employer  offered  work  to  employees  of  the  same 
class  as  the  injured  man.  He  would  then  be  given  credit  for 
the  full  amount  of  time  that  he  could  have  put  in  and  for 
the  largest  possible  amount  that  he  could  actually  have  earn- 
ed in  the  service  of  his  employer.  The  total  wages  that  he 
actually  earned  by  working  whenever  the  employer  offered 
work,  viz.,  "while  working  at  full  time,"  during  the  year  just 
previous  to  the  accident  could  be  divided  by  52  and  the  result 
would  be  the  "average  weekly  wage  earned  by  the  employee 
at  the  time  of  injury  reckoning  wages  as  earned,  while 
working  at  full  time." 


CHAPTER  VI 

DEPENDENCY 

Section. 

164.  Dependency  in  general. 

165.  Dependency  defined. 

166.  Dependency  a  question  of  fact. 

167.  "Actual  dependents." 

168.  Burden  of  proving  dependency. 

169.  When  wholly  dependent. 

170.  When  partly  dependent. 

171.  The  award  of  a  wholly  dependent  person  as  a  vested  interest. 

172.  Adults  as  dependents  on  minors. 

173.  Husband  and  wife,  parent  and  child. 

174.  When  husband  and  wife  live  apart. 

175.  Marriage  as  affecting  dependency. 

176.  Alien  dependents. 

177.  Effect  of  marriage  of  dependent. 

178.  Effect  on  dependents  of  imprisonment  of  workman. 

179.  Effect  on  dependents  of  release  given  by  employee. 

180.  Payments  to  one  dependent  for  the  benefit  of  others. 

181.  Payments  to  supposed  dependents. 

§  164.  Dependency  In  General. 

The  purpose  of  the  acts  is  to  provide  compensation  for 
those  depending  upon  an  injured  workman  as  well  as  for 
the  workman  himself.  The  acts  are  usually  specific  as  to  the 
question  of  dependency  in  whole  or  in  part,  and  are  the  only 
absolute  guide  on  this  question. 

Whether  or  not  dependency  exists  has  been  universally 
held  to  be  a  question  of  fact,  and  necessarily  so,  because 
any  attempt  to  lay  down  strict  rules  on  this  subject  would 
result  in  injustice  and  the  spirit  of  the  law,  which  is  to 
make  payments  directly  to  the  persons  actually  dependent 
upon  the  deceased  workman,  would  in  many  cases  be 
violated. 


194  MANUAL  OF  COMPENSATION  LAW 

For  extensive  notes  dealing  with  the  question  of  de- 
pendency under  compensation  acts  in  general,  see  L.  R.  A. 
1916  A  249-254  (Am.  Cases) ;  Idem.,  121-127  (Eng.  Cases). 
For  note  including  -decisions  of  courts  and  boards,  see  9 
N.  C.  C.  A.  579-597,  also  6  N.  C.  C.  A.  240-287,  and  5  N.  C. 
C.  A.  613-615. 

§  165.  Dependency  Defined. 

The  Rhode  Island  Supreme  Court  in  Dazy  v.  Apponang 
Co.,  36  R.  I.  81,  89  Atl.  160,  4  N.  C.  C.  A.  594,  L.  R.  A.  1916A 
(note)  250,  said:  "The  test  of  dependency  is  not  whether 
the  petitioner,  by  reducing  his  expenses  below  a  standard 
suitable  to  his  condition  in  life,  could  secure  a  subsistence 
for  his  family  without  the  contributions  of  the  deceased 
son,  but  whether  such  contributions  were  needed  to  pro- 
vide the  family  with  ordinary  necessaries  of  life  suitable 
for  persons  in  their  class  and  position.  Boyd  Workmen's 
Compensation,  §  234 ;  Main  Colliery  Co.  v.  Davies,  2  W.  C.  C. 
108 ;  Howells  v.  Vivian  &  Sons,  4  W.  C.  C.  106.  The  peti- 
tioner is  not  bound  to  deprive  himself  of  the  ordinary  neces- 
saries of  life  to  which  he  has  been  accustomed  in  order  to 
absolve  the  respondent  from  the  payment  of  damages,  nor 
can  he  on  the  other  hand  demand  money  from  the  employer 
for  the  purpose  of  adding  to  his  savings  or  investments. 
The  expression  'dependent'  must  be  held  to  mean  dependent 
for  the  ordinary  necessaries  of  life  for  a  person  of  his  class 
and  position  and  does  not  cover  the  reception  of  benefits 
which  might  be  devoted  to  the  establishment  or  increase  of 
some  fund  which  he  might  desire  to  lay  aside.  Simmons 
v.  White  Bros.,  1  W.  C.  C.  89." 

For  similar  English  definition  see  Simmons  v.  White 
Bros.,  1  Q.  B.  1005,  80  L.  T.  344,  6  N.  C.  C.  A.  (note)  241. 

In  Connecticut,  the  Court  of  Appeals  in  the  appeal  of 
Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245,  9  N.  C.  C.  A.  579 
(note)  defined  dependency  as  follows :  "A  dependent  under 
the  act  is  not  necessarily  one  to  whom  the  contributions  of 
the  injured  or  deceased  workman  are  necessary  to  his  or 
her  support  of  life.  The  test  is  whether  the  contributions 


DEPENDENCY  195 

were  relied  upon  by  the  dependent  for  his  or  her  means  of 
living,  judging  this  by  the  class  and  position  in  life  of  the 
dependent.  Howells  v.  Vivian  &  Sons,  85  L.  T.  529;  1 
Bradbury's  Workmen's  Compensation  573.  Partial  depend- 
ency may  exist,  though  the  contributions  be  at  irregular 
intervals  and  in  irregular  amounts,  and  though  the  depend- 
ent had  other  means  of  support.  Bradbury's  Workmen's 
Compensation,  574.  Dependency  is  thus  in  each  case  a  fact 
to  be  determined.  Main  Colliery  Co.,  Ltd.,  v.  Davies,  16  T. 
L.  R.  460." 

§  166.  Dependency  a  Question  of  Fact. 

Whether  or  not  any  person  is  the  dependent  of  another 
is  a  question  of  fact  to  be  decided  upon  by  the  board  and 
their  decision  is  final  unless  against  the  weight  of  the  evi- 
dence. Petrozino  v.  Am.  Mut.  Lia.  Co.,  219  Mass.  498,  107 
N.  E.  370. 

In  Hotel  Bond  Co.  Appeal,  89  Conn.  143,  93  Atl.  245,  9 
N.  C.  C.  A.  596,  the  court,  construing  a  section  of  the  Con- 
necticut act,  said:  "It  conclusively  presumes  certain 
persons  standing  in  a  certain  relation  to  a  deceased 
employee  to  be  totally  dependent,  'in  all  other  cases 
questions  of  dependency,  total  or  partial,  shall  be 
determined  in  accordance  with  the  fact,  as,  the  fact 
may  be  at  the  time  of  the  injury'  (section  10).  Questions 
of  dependency  are  thus  by  the  act  made  questions  of  fact. 
Had  not  the  act  definitely  settled  this  point  we  should  have 
inclined  to  this  view,  both  on  reason  and  authority.  Her- 
rick's  Case,  217  Mass.  Ill,  112,  104  N.  E.  432;  Main  Col- 
liery Co.  v.  Davies  (1900),  A.  C.  358.  The  ultimate  ques- 
tion is  the  application  of  the  proper  standard  to  the  facts 
found.  The  court  may  review  the  standard  applied ;  it  can 
not  review  the  facts  found,  except  in  those  instances  in 
which  our  law  permits  such  review." 

Where  a  person  claiming  as  a  dependent  is  not  conclu- 
sively presumed  to  be  wholly  dependent  upon  the  deceased, 
it  is  a  question  of  fact  to  be  determined  as  of  the  date  of 


196  MANUAL  OF  COMPENSATION  LAW 

the  accident  whether  dependency  exists.  Miller  v.  River- 
side Storage  &  Cartage  Co.  155  N.  W.  462  (Mich.) 

Whether  or  not  a  mother  and  a  sister  are  wholly  de- 
pendent upon  the  deceased  employee  was  held  to  be  a  ques- 
tion of  fact  under  the  Mass.  Act.  Petrozino  v.  American 
Mutual  Liability  Ins.  Co.  219  Mass.  498,  107  N.  E.  370. 

Whenever  there  is  a  claim  for  death  of  an  employee, 
under  the  Mass.  Act  two  questions  arise:  "Was  the  claim- 
ant dependent  upon  the  decedent,  and  if  so  what  is  the 
amount  to  be  paid  the  dependent."  Gove  v.  Royal  Indem- 
nity Co.  223  Mass.  187,  111  N.  E.  702. 

Under  the  New  York  law  the  decision  of  the  Commis- 
sion that  a  mother  was  dependent  upon  a  deceased  work- 
man was  conclusive  on  appeal  where  it  was  supported  by 
evidence.  Rhyner  v.  Hueber  Bldg  Co.  156  N.  Y.  S.  903,  171 
App.  Div.  56. 

Where  the  Commission  has  found  that  the  claimants 
are  dependents,  this  decision  is  final  if  there  is  any  evidence 
to  support  it.  Hendricks  v.  Seeman  Bros.  155  N.  Y.  S.  638, 
170  App.  Div.  133. 

Under  the  California  Act  it  was  held  that  the  ques- 
tion whether  non-resident  parents  of  an  injured  employee 
were  dependent  upon  him  is  one  of  fact  for  the  Board  to 
determine.  Garcia  v.  Ind.  Ace.  Comm.  171  Cal.  57,  151 
Pac.  741. 

Whether  a  deceased  employee's  parents  and  brothers 
and  sisters  were  dependent  upon  him,  within  the  meaning 
of  the  New  Jersey  act,  was  held  to  be  a  question  of  fact  for 
the  judge.  Havey  v.  Erie  R.  Co.  95A  124,  87  N.  J.  L.  444, 

§  167.  "Actual  Dependents." 

The  New  Jersey  law  uses  the  words  "actual  depend- 
ents." In  the  case  of  Miller  v.  Public  Service  Ry.  Co.  84 
N.  J.  Law  174,  85  Atl.  1030,  the  court  of  common  pleas  of 
Essex  County  had  allowed  a  claim  of  50  per  cent  of  the 
deceased  husband's  earnings  by  reason  of  the  fact  that  the 
deceased  left  not  only  a  widow,  but  also  a  father  and  cer- 
tain brothers  and  sisters.  The  statute  provides  certain 


DEPENDENCY  197 

benefits  in  case  of  a  surviving  widow,  or  of  a  widow  with 
children,  or  of  a  widow  and  other  dependent  relatives.  No 
proof  of  dependence  was  offered  in  the  case,  but  the  judge 
made  an  award  as  for  a  widow  and  a  dependent  parent. 
This  the  supreme  court  held  to  be  in  error,  since  the  statute 
provides  not  for  persons  nominally  dependent,  but  only 
for  those  actually  dependent  upon  the  deceased  workman 
for  support,  and  for  this  reason  the  finding  of  the  lower 
court  was  reversed. 

The  conclusions  of  the  court  are  presented  in  the  offi- 
cial syllabus,  which  is  as  follows: 

"The  words  'actual  dependents'  as  used  in  section  12  of 
'An  act  prescribing  the  liability  of  an  employer  to  make 
compensation  for  injuries  received  by  an  employee  in  the 
course  of  employment,  establishing  an  elective  schedule  of 
compensation,  and  regulating  procedure  for  the  determina- 
tion of  liability  and  compensation  thereunder/  approved 
April  4,  1911  (P.  L.  1911,  p.  139),  mean  dependents  in  fact. 
The  contrast  in  the  statute  is  between  those  who  are  act- 
ually dependent  and  those  who  are  not  dependent." 

§  168.  Burden  of  Proving  Dependency. 

In  re  King  220  Mass.  290  107  N.  E.  959,  the  question 
was  whether  the  burden  of  proving  that  the  employment 
was  casual  was  on  the  insurer  or,  that  it  was  not  casual 
was  on  the  dependent  widow.  The  commission  ruled  that 
it  was  on  the  insurer.  The  court  in  reversing  this  ruling 
said:  "The  burden  of  proof  however  did  not  shift.  Carroll 
v.  Boston  Elevated  Railway  200  Mass.  527.  The  depend- 
ent was  required  to  satisfy  the  board  that  the  employee's 
service  was  such  as  to  entitle  her  to  compensation  for  his 
death.  New  Bedford  v.  Hingham  117  Mass.  445,  Thack- 
way  v.  Connelly  &  Sons,  3  B.  W.  C.  C.  216." 

§  169.  When  Wholly  Dependent. 

In  the  great  majority  of  the  states  certain  persons  are 
named  who  are  presumed  to  be  wholly  dependent  upon  a 
deceased  workman,  and  in  those  states  all  other  cases  of 


198  MANUAL  OF  COMPENSATION  LAW 

dependency  in  whole  or  in  part  are  to  be  determined  by 
the  facts  presented  by  each  case. 

A  claimant  need  not  be  wholly  supported  out  of  an  em- 
ployee's wages  in  order  to  be  totally  dependent,  and  it  is 
immaterial  whether  anything  was  inherited  from  the  em- 
ployee's estate.  State  ex  rel  Crookston  Lumber  Co.  v.  Dis- 
trict Court  of  Beltrami  County  131  Minn.  27, 154  N.  W.  509. 

An  invalid  daughter  was  wholly  dependent  upon  a  fath- 
er, although  she  had  $100  in  cash  at  the  time  of  his  death. 
Re  Carter,  221  Mass.  105,  108  N.  E.  911. 

Invalid  parents  though  owning  their  own  home  are 
wholly  dependent  upon  a  son  who  contributed  to  their  sup- 
port although  a  married  daughter  lived  with  and  gratuit- 
ously cared  for  them.  Under  this  state  of  facts  in  State 
Ex  rel  Splady  v.  Dist.  Ct.,  128  Minn.  338,  151  N.  W.  123, 
L.  R.  A.  1916A  249  (note),  the  court  said:  "It  may  cer- 
tainly be  argued  with  some  force  that  one  who  owns  his 
home,  or  for  whom  others  perform  friendly  services,  is  not 
technically  speaking  'wholly  dependent'  upon  the  cash  re- 
ceived from  the  wages  of  the  worker  of  the  family.  Nor 
is  one  who  receives  help  from  a  charitable  organization,  or 
from  neighbors.  But  we  can  not  suppose  that  the  legisla- 
ture intended  that  such  a  person  should  be  considered  only 
a  'partial  dependent.' ' 

In  the  following  cases  it  was  held  that  the  claimants 
were  wholly  dependent:  A  widowed  mother  upon  a  son, 
State  Ex  rel  Crookston  Lumber  Co.  v.  District  Ct.,  131 
Minn.  27,  154  N.  W.  509;  a  daughter  upon  a  father,  Her- 
rick's  Case,  217  Mass.  Ill,  104  N.  E.  432,  4  N.  C.  C.  A.  554; 
a  fifteen-year-old  sister  upon  a  brother  although  the  father 
was  alive  but  in  poor  health,  Walz  v.  Holbrook,  C.  &  R. 
Corp.  170  App.  Div.  6,  155  N.  Y.  Supp.  703 ;  a  mother  and 
sister  upon  a  son,  Caliendo's  Case,  219  Mass.  498,  107  N. 
E.  370 ;  a  mother  upon  a  son,  where  she  had  seven  children 
too  young  to  work  although  the  husband  was  alive  and  earn- 
ing $11  a  week,  Krauss  v.  Geo.  H.  Fritz  &  Son,  87  N.  J.  L. 
321,  93  Atl.  578.  A  father  able  to  save  money  after  support- 


DEPENDENCY  199 

ing  his  wife  is  not  dependent  upon  a  son.  Dazy  v.  Apponang 
Co.,  36  R.  I.  81,  89  Atl.  160,  4  N.  C.  C.  A.  594.  A  mother 
and  a  brother  have  been  held  dependent  upon  a  deceased 
workman.  Hendricks  v.  Seeman,  170  App.  Div.  133,  155 
N.  Y.  Supp.  638. 

Where  a  widowed  mother  is  partly  dependent  upon  the 
wages  of  a  son  and  partly  upon  the  yield  of  his  land,  she 
is  wholly  dependent  upon  him  for  her  support,  within  the 
meaning  of  the  Minnesota  law.  State  Ex  rel  Crookston 
Lumber  Co.  v.  District  Court  of  Beltrami  County  131  Minn. 
27,  154  N.  W.  509. 

Under  the  Wisconsin  Act,  providing  for  a  reduction  of 
compensation  where  the  injured  person  is  of  advanced  age, 
it  was  held  that  this  reduction  did  not  apply  in  case  of  his 
death  where  there  were  surviving  dependents.  City  of  Mil- 
waukee v.  Ritzow,  149  N.  W.  480,  158  Wis.  376. 

Under  the  Mass.  Act  as  amended  a  dependent  mother 
of  a  deceased  engine-horseman  killed  in  the  city's  employ 
was  held  not  entitled  to  compensation.  Devney  v.  City  of 
Boston,  220  Mass.  270,  111  N.  E.  788. 

In  Pinel  v.  Rapid  Railway  System,  184  Mich.  169,  150 
N.  W.  897,  the  facts  were  that  Edgar  Pinel  was  killed  on 
May  29,  1913,  while  in  the  employment  named.  He  left 
no  widow  or  children,  but  a  mother,  brothers  and  sisters. 
The  board  of  arbitration  denied  the  claim  of  the  mother, 
and  the  industrial  accident  board  affirmed  this  decision, 
whereupon  the  claimant  secured  a  review  of  the  proceedings 
by  the  supreme  court.  The  injured  man  was  not  making 
any  contribution  to  his  mother's  support,  and  as  he  would 
be  under  no  legal  obligation  to  do  so  until  proceedings  were 
brought  against  him  to  compel  such  contribution,  the  court 
held  that  the  mother  was  not  a  dependent  within  the  mean- 
ing of  the  law. 

§  170.  When  Partly  Dependent. 

Whether  or  not  a  person  claiming  compensation  is  part- 
ly dependent  upon  a  deceased  workman  is  a  question  of  fact 
to  be  determined  in  the  manner  provided  by  the  act,  and 


200  MANUAL  OF  COMPENSATION  LAW 

subject  to  the  restrictions,  if  there  are  any,  as  to  who  may 
be  partly  dependent. 

Where  a  deceased  minor  employee  was  a  member  of 
the  family  of  his  half  brother  who  was  partially  depend- 
ent upon  him,  such  half  brother  was  not  entitled  to  com- 
pensation as  against  the  surviving  father  of  the  deceased 
minor.  In  re  Kelly's  case  222  Mass.  538,  111  N.  E.  395. 

A  son  turned  his  wages  over  to  his  mother  and  out  of 
this  certain  medical  attention  needed  by  her  was  paid.  He 
obtained  money  from  her  for  his  expenditures.  It  was  held 
that  she  was  partly  dependent.  Smith  v.  National  Sash  & 
Door  Co.,  96  Kan.  816,  153  Pac.  533. 

The  surviving  sister  of  a  city  employee  was  held  de- 
pendent although  only  partially  so.  Kenney  v.  City  of 
Boston  222  Mass.  401,  111  N.  E.  47. 

In  Walz  et  al.  v.  Holbrook,  Cabot  &  Rollins  Corporation 
170  App.  Div.  6,  155  N.  Y.  Supp.  703,  a  school  girl  made 
a  claim  as  a  partial  dependent  upon  a  deceased  brother  who 
had  contributed  money  to  the  general  support  of  the  fami- 
ly but  not  to  her  directly.  The  court  said:  "The  appellant 
contends,  however,  that  the  sister  was  not  a  dependent 
within  the  meaning  of  the  statute,  for  the  reasons  that  the 
moneys  for  her  support  were  not  paid  directly  to  her  in- 
dividually, by  the  deceased  and  that  her  parents  were  leg- 
ally chargeable  with  such  support.  If  dependent  up- 
on the  moneys  contributed  to  her  support  by  the 
deceased,  such  dependency  was  not  affected  by  the 
fact  that  the  moneys  were  so  applied  by  a  person  to 
whom  they  had  been  paid  by  the  deceased  for  that  purpose. 
.  .  .  The  question  of  dependency  is  one  of  fact.  The 
statute  does  not  require  that  a  person  shall  be  wholly  de- 
pendent in  order  to  be  entitled  to  the  death  benefit,  and 
the  fact  that  the  sister  was  in  part  dependent  for  her  sup- 
port from  sources  other  than  the  contributions  of  the  de- 
ceased, will  not  deprive  her  of  the  benefit  of  the  statute. 
Actual  partial  dependency  of  a  person  bearing  one  of  the 
several  relationships  specified  in  the  statute  will  suffice." 


DEPENDENCY  201 

Although  a  mother  was  not  completely  dependent,  at 
the  time  of  his  death  upon  her  son,  who  contributed  to  her 
support,  the  fact  that  her  advancing  age  and  condition  of 
life  would  soon  make  her  totally  dependent  was  sufficient  to 
find  her  partly  dependent  under  the  Connecticut  act.  Ho- 
tel Bond  Co.  Appeal,  89  Conn.  143,  93  Atl.  245. 

In  Verieke  v.  City  of  Grand  Rapids,  184  Mich.  474,  151 
N.  W.  723,  a  mother  divorced  from  her  husband  was  held 
partly  dependent  upon  a  son  who  contributed  to  her  sup- 
port. 

In  Pinel  v.  Rapid  Ry.  System,  184  Mich.  169,  150  N.  W. 
897,  a  mother,  eighty-three  years  old,  lived  on  a  farm  in 
which  she  had  a  life  estate.  One  of  her  sons  lived  with 
her.  Another  son  who  did  not  live  with  her  and  did  not 
contribute  to  her  support  was  injured.  It  was  held  that 
she  was  not  partly  dependent  on  this  son.  The  court  said : 
"The  claimant  did  not  belong  to  the  class  conclusively  pre- 
sumed by  the  compensation  law  to  be  a  dependent.  On  the 
date  of  the  accident  it  is  conceded  claimant  was  not  depend- 
ent by  reason  of  any  support  furnished  to  her  by  the  de- 
ceased." 

For  further  instances  see  L.  R.  A.  1916A  249-254  (Am. 
Cases) ;  Idem.,  121-127  (Eng.  Cases) ;  9  N.  C.  C.  A.  579-597, 
6  N.  C.  C.  A.  240-287,  and  5  N.  C.  C.  A.  613-615. 

§  171.      The  Award  of  a  Wholly  Dependent  Person  As  a 
Vested  Interest. 

Whether  or  not  an  award  of  compensation  is  a  vested 
interest  which  passes  to  the  estate  of  the  deceased  depend- 
ent, is  of  course  subject  to  the  terminology  and  the  whole 
underlying  purpose  of  each  act. 

Generally  speaking,  the  theory  underlying  the  passage 
of  most  acts  was  that,  on  account  of  the  increased  number 
of  casualties  for  which  the  acts  provide  compensation,  on 
account  of  the  certainty  of  payment  directly  to  in- 
jured employees,  and  their  dependents  in  case  of  death 
within  the  acts,  and,  on  account  of  the  greatly  increased 
burden  on  the  employer,  that  therefore  compensation  is 


202  MANUAL  OF  COMPENSATION  LAW 

a  right  contingent  upon  the  life  of  the  dependent  during  the 
period  for  which  compensation  is  payable  under  terms  of 
the  act  and  not  a  vested  right  for  the  benefit  of  the  heirs 
at  law.  The  theory  was  that,  because  under  the  old  sys- 
tem, persons  other  than  those  actually  dependent  upon  the 
deceased  employee  often  benefited  by  his  death,  to  as  great 
a  degree  as  actual  dependents,  who  in  imany  cases  received 
no  compensation  at  all,  therefore  under  the  new  system, 
none  but  actual  dependents  should  receive  compensation, 
but  they  should  receive  it  regardless  of  his  negligence,  with 
but  few  well  grounded  exceptions. 

The  case  of  Matecny  v.  Vierling,  187  111.  App.  448,  sus- 
tains this  reasoning  at  least  in  part.  The  court  said: 

"The  appellant  claims  that  under  section  11  of  the  act 
(of  1911)  the  payments  cease  upon  the  death  of  the  de- 
pendent person  or  persons  entitled  to  receive  them,  and 
that  in  the  present  case  the  appellant  would  not  be  obli- 
gated to  make  any  further  payments  to  the  administrator 
after  the  death  of  the  mother.  The  appellee  contends  that, 
even  if  it  be  held  that  the  mother  was  the  sole  beneficiary, 
still  her  right  to  the  entire  compensation  became  vested 
upon  the  death  of  Joseph  Matecny,  and  the  appointment 
of  an  administrator  for  his  estate,  and  that  this  right  would 
survive  her  death  and  inure  to  the  benefit  of  her  estate. 
After  a  careful  consideration  of  this  question,  we  have  ar- 
rived at  the  conclusion  that  the  contention  of  the  appel- 
lant is  correct,  and  that  the  obligation  of  the  appellant  to 
pay  compensation  to  the  administrator  would  be  extin- 
guished on  the  death  of  the  mother.  We  do  not  believe  the 
act  contemplates  that  the  employer  shall  pay  any  money  to 
non-dependent  heirs."  This  was  said  under  Section  II  of  the 
Illinois  act  of  1911  which  reads:  "Any  right  to  receive  com- 
pensation hereunder  shall  be  extinguished  by  the  death  of 
the  person  or  persons  entitled  thereto,  subject  to  the  pro- 
visions of  this  act  relative  to  compensation  for  death  re- 
ceived in  the  course  of  employment." 

•  But  in  State  Ex  rel  Munding  v.  Industrial  Comm.,  the 


DEPENDENCY  203 

Ohio  court  arrived  at  a  different  conclusion  under  the  act 
of  that  state.  After  reviewing  the  parts  of  the  act  having 
a  bearing  on  the  question  and  after  citing  in  support  of 
their  conclusion  the  English  cases  of  United  Colliers  v. 
Simpson,  Appeal  Cases  (1909)  383,  and  Darlington  v.  Ros- 
sae  &  Sons,  1  K.  B.  21.9,  and  against  it  the  case  of  In  re 
Donovan  &  Cameron,  Swan  &  Co.,  2  Ir.  R.  633,  the  Ohio 
Supreme  Court  said:  "We  hold  that  when  the  award  is 
once  made  to  a  sole  dependent  the  right  to  compensation 
vests,  and  once  vested  there  can  be  no  condition  attached 
except  as  to  the  time  of  payment,  and  it  is  equally  imma- 
terial whether  the  dependent  subsequently  dies  or  becomes 
independent." 

§  172.  Adults  As  Dependents  on  Minors. 

In  re  Murphy  218  Mass.  278,  105  N.  E.  635,  5  N.  C.  C. 
A.  716,  Daniel  Murphy  instituted  proceedings  against  the 
Bigelow  Carpet  Co.  and  its  insurer  for  compensation  for 
the  death  of  his  minor  son,  Walter  Murphy.  The  boy  had 
earned  $5.67  per  week,  and  contributed  all  of  this  to  his 
father  for  the  support  of  his  family,  which  consisted  of  the 
father,  mother,  and  nine  children,  including  Walter.  The 
act  provides  that  in  the  case  of  partial  dependents  "there 
shall  be  paid  such  dependents  a  weekly  compensation  equal 
to  the  same  proportion  of  the  weekly  payments  for  the  bene- 
fit of  persons  wholly  dependent  as  the  amount  contributed 
by  the  employee  to  such  partial  dependents  bears  to  the 
earnings  of  the  deceased  at  the  time  of  his  injury."  The 
industrial  accident  board  found  that,  although  the  father 
was  a  partial  dependent  in  the  sense  that  he  had  other  in- 
come, the  earnings  of  himself  and  other  children,  the  rule 
quoted  obviously  did  not  apply  in  such  a  case,  and  the 
amount  of  compensation  should  be  the  same  as  for  a  total 
dependent,  in  this  case  the  minimum  amount  permitted  by 
the  statute,  or  $4  a  week,  for  the  300  weeks  specified  in 
the  act.  The  court  adopted  this  view,  saying: 

"In  the  present  case  the  father  had  a  large  family  which 
he  was  legally  bound  to  support,  and  this  he  was  bound  to 


204  MANUAL  OF  COMPENSATION  LAW 

do,  whether  the  children  could  help  or  not.  The  amount 
contributed  by  Walter  went  to  help  the  father  in  the  sup- 
port of  the  whole  family.  Whether  it  is  wise  to  distin- 
guish as  to  the  support  of  the  individual  members  of  the 
family  in  a  case  like  this,  as  the  insurer  suggests,  is  for 
the  legislature." 

In  Boyd  v.  Pratt  et  al.,  72  Wash.  306,  130  Pac.  371,  the 
commissioners  had  made  an  award  of  $20  per  month  to  his 
mother  from  the  date  of  his  death  until  the  time  when  he 
would  have  arrived  at  the  age  of  21  years.  Claim  was  made 
in  the  superior  court  of  King  County  that  as  Mrs.  Boyd 
was  a  dependent,  the  allowance  should  be  made  for  the  time 
of  her  dependency  and  not  for  the  period  of  her  son's  mi- 
nority. This  view  was  adopted  by  the  court,  and  on  appeal 
by  the  supreme  court  of  the  State.  The  compensation  act 
of  1911  provides  for  a  payment  monthly  to  a  dependent  of 
a  deceased  workman  in  an  amount  not  exceeding  $20  per 
month.  The  same  section  provides  that  where  the  deceased 
is  a  minor  and  unmarried,  his  parents  shall  receive  $20  per 
month  until  he  would  have  reached  the  age  of  21  years.  In 
approving  the  payments  of  benefits  during  dependency  the 
supreme  court  said : 

"We  think  the  interpretation  of  the  statute  adopted  by 
the  lower  court  is  correct.  It  is  quite  clear  to  us  that  the 
legislature  must  have  intended  that  the  first  clause  quoted 
should  apply  to  cases  of  dependency,  while  the  last  clause 
refers  only  to  cases  of  nondependency.  This  construction  is 
in  keeping  with  the  spirit  and  object  of  the  law;  that  is, 
to  protect  the  injured,  and  to  save  dependents  from  becom- 
ing public  charges.  To  hold  that  an  allowance  given  be- 
cause of  dependency  is  to  be  cut  off  arbitrarily  at  a  time 
when  the  deceased  would  have  attained  the  age  of  21  years 
would  defeat  the  humane  purposes  of  the  statute,  for  the 
dependency  would  not  then  cease,  but  might  continue  over 
a  period  of  years.  The  second  clause  seems  to  have  ref- 
erence to  that  principle  which,  under  the  common  law,  gave 


DEPENDENCY  205 

a  parent  the  right  to  demand  and  receive  the  wages  of  a 
minor  child." 

Section  11  of  the  Kentucky  act  makes  the  minor  sui 
juris  for  the  purposes  of  the  act  and  says:  "No  other  per- 
son shall  have  .  .  .  right  to  compensation  for  an  in- 
jury to  or  death  of  such  minor  employee  or  for  loss  of  serv- 
ice on  account  thereof,  by  reason  of  the  minority  of  such 
employee."  Therefore  it  seems  that  the  parent  of  a  minor, 
although  entitled  to  his  earnings  at  coftimon  law,  does  not 
have  the  right  to  claim  compensation  for  an  injured  minor 
child.  The  child,  being  for  the  purposes  of  this  act  sui 
juris,  should  make  the  claim.  Likewise  if  a  minor  child 
is  killed  as  a  result  of  an  injury  within  this  act,  the  parents 
would  not  have  a  right  to  compensation  merely  because  of 
infancy,  but  it  would  have  to  be  shown  that  they  were 
actually  dependent  upon  the  earnings  of  this  minor  child. 

In  arriving  at  the  amount  of  compensation  due  to  the 
dependents  of  a  16-year-old  employee  killed  in  the  course 
of  his  employment,  under  the  New  York  act,  it  was  held 
that  the  Board  could  properly  consider  his  probable  wage 
increase.  Kilberg  v.  Vitch,  156  N.  Y.  S.  971,  171  App.  Div. 
89. 

Parents  can  be  dependents  of  a  minor  son  under  the 
New  York  act.  Friscia  v.  Drake  Bros.  Co.,  153  N.  Y.  Supp. 
392,  167  App.  Div.  496. 

A  mother  was  held  dependent  upon  the  minor,  18  years 
of  age,  within  the  meaning  of  the  New  Jersey  act  in  Krauss 
v.  Geo.  H.  Fritz  &  Son,  87  N.  J.  Law  321,  93A.  578. 

§  173.  Husband  and  Wife,  Parent  and  Child. 

Usually  there  is  a  provision  that  a  wife  shall,  under 
well  denned  conditions,  be  presumed  to  be  dependent  on  a 
husband  with  whom  she  was  living  at  the  time  of  his 
death.  Likewise  a  husband  upon  a  wife,  and  a  child,  with 
limitations  as  to  age  and  capacity  to  work,  upon  a  parent 
with  whom  it  is  living.  Where  such  provisions  exist,  de- 
pendency is  a  question  of  fact  in  all  other  cases  not  named. 


206  MANUAL  OF  COMPENSATION  LAW 

The  wording  of  the  particular  act  must  be  examined  to  de- 
termine this  question. 

§  174.  When  Husband  and  Wife  Live  Apart. 

Generally  where  a  husband  and  wife  live  apart  at  the 
time  of  the  injury  causing  death,  it  is  a  question  of  fact 
whether  or  not  the  one  is  dependent  upon  the  other. 

Section  13  of  the  Kentucky  act  provides  that  a  husband 
or  wife  shall  be  presumed  to  be  wholly  dependent  upon 
each  other,  if  at  the  time  of  the  accident  one  has  not  aban- 
doned the  other  voluntarily,  and  in  the  husband's  case  he 
must  be  incapacitated  from  wage  earning  in  addition.  This 
however  would  not  keep  him  from  proving  that  he  was 
partly  dependent  upon  his  wife. 

The  Wisconsin  statute  provides  for  the  same  presump- 
tion but  uses  the  words :  "  (a)  A  wife  upon  a  husband  with 
whom  she  is  living  at  the  time  of  his  death,  (b)  A  hus- 
band upon  a  wife  with  whom  he  is  living  at  the  time  of  her 
death."  The  effect  of  this  wording  makes  it  very  similar 
to  section  13  of  the  Kentucky  act,  which  is  practically  the 
converse  of  the  Wisconsin  law.  In  Northwestern  Iron  Co. 
v.  Industrial  Comm.  of  Wis.,  154  Wis.  97,  142  N.  W.  271, 
L.  R.  A.  1916A  366,  Ann.  Cas.  1915B  877,  3  N.  C.  C.  A. 
670,  the  court  said:  "Proof  of  total  dependency  is  dis- 
pensed with  under  the  statute  where  the  husband  and  wife 
are  'living  together'  at  the  time  of  the  death  of  the  injured 
employee.  It  seems,  therefore,  quite  obvious  that  the  legis- 
lature intended  by  the  use  of  the  words  to  include  all  cases 
where  there  is  no  legal  or  actual  severance  of  the  marriage 
relation,  though  there  may  be  physical  separation  of  the 
parties  by  time  and  distance.  The  'living  together*  con- 
templated by  the  statute,  we  think,  was  intended  to  cover 
cases  where  no  break  in  the  marriage  relation  existed,  and 
therefore  physical  dwelling  together  is  not  necessary,  in 
order  to  bring  the  parties  within  the  words  'living  together/ 
There  must  be  a  legal  separation  or  an  actual  separation 
in  the  nature  of  an  estrangement,  else  there  is  a  'living  to- 
gether' within  the  meaning  of  the  statute.  This  seems  to 


DEPENDENCY  207 

be  the  reasonable  and  practical  construction  of  the  law, 
and  the  one  which  we  think  the  legislature  intended.  If 
the  law  should  receive  the  construction  that  there  must  be 
physical  dwelling  together  in  order  to  satisfy  the  statute, 
it  is  plain  that  the  purpose  of  the  law  would  in  many  cases 
be  defeated,  because  in  many  cases  the  spouse  may  be  ab- 
sent from  home  for  long  intervals,  although  there  be  no 
break  in  the  marriage  relation,  no  estrangement,  and  no 
intent  to  separate  or  sever  the  existing  relation  or  change 
the  relations  or  obligations  created  by  the  marriage  con- 
tract." 

In  the  case  just  above  quoted  the  contention  of  the 
company  was  based  on  the  fact  that  the  widow  of  the  de- 
ceased workman  was  a  nonresident  of  this  country,  not  liv- 
ing with  her  husband  at  the  time  of  his  death,  the  employee 
having  left  his  native  country,  Austria-Hungary,  some 
three  years  and  three  months  previously,  leaving  there  his 
wife  and  child.  He  had  not  visited  them,  but  did  occa- 
sionally send  his  wife  money.  Soon  after  taking  employ- 
ment with  the  company  he  sent  $30  to  his  wife,  saying  that 
if  he  did  not  send  money  every  three  months  she  could  not 
make  a  living.  He  also  sent  $21  in  February,  exactly  three 
months  after  the  last  previous  remittance. 

In  re  Nelson  217  Mass.  467,  105  N.  E.  357,  5  N.  C.  C. 
A.  694.  The  Massachusetts  Supreme  Court  disapproved 
of  the  conclusion  in  Northwestern  Iron  Co.  v.  Ind.  Comm. 
(supra).  The  Massachusetts  act  provides  that  a  wife  liv- 
ing with  her  husband  shall  be  conclusively  presumed  to  be 
dependent  on  him.  In  the  present  case  the  wife  and  hus- 
band had  lived  apart  several  times  for  periods  of  a  few 
months,  and  at  the  time  of  his  death  had  not  lived  together 
in  the  sense  of  occupying  the  same  house  for 
nearly  a  year,  she  being  in  Nova  Scotia  during  the  last 
six  months  while  he  was  at  work  in  Boston.  There  had 
been  no  talk  of  permanent  separation  or  divorce,  but  she 
appears  to  have  been  largely  supporting  herself  and  their 
child  for  the  year  mentioned.  Under  these  circumstances 

! 


208  MANUAL  OF  COMPENSATION  LAW 

the  court  held  that  they  were  not  "living  together"  in  the 
sense  meant  by  the  language  of  the  statute,  and  that  the 
industrial  accident  board  should  ascertain  the  extent  of  de- 
pendency as  a  imatter  of  fact. 
The  court  said: 

"The  following  persons  shall  be  conclusively  presumed 
to  be  wholly  dependent  for  support  upon  a  deceased  em- 
ployee : 

'(a)  A  wife  upon  a  husband  with  whom  she  lives  at  the 
time  of  his  death. 

'  (b)  A  husband  upon  a  wife  with  whom  she  lives  at  the 
time  of  her  death. 

'  (c)  A  child  or  children  under  the  age  of  18  years.  .  . 
.  there  being  no  surviving  dependent  parent. 

'In  all  other  cases  questions  of  dependency,  in  whole  or 
in  part,  shall  be  determined  in  accordance  with  the  fact, 
as  the  fact  may  be  at  the  time  of  injury. 

'With  whom  she  lives'  in  (a)  means  living  together  as 
husband  and  wife  in  the  ordinary  acceptation  and  signifi- 
cance of  these  words  in  common  understanding.  They  mean 
maintaining  a  home  and  living  together  in  the  same  house- 
hold, or  actually  cohabiting  under  conditions  which  would  be 
regarded  as  constituting  a  family  relation.  There  may  be 
temporary  absences  and  incidental  interruptions  arising  out 
of  changes  in  the  house  or  town  of  residence,  or  out  of  trav- 
el for  business  or  pleasure.  But  there  must  be  a  home  and 
a  life  in  it.  The  matrimonial  abode  may  be  a  roof  of  their 
own,  a  hired  tenement,  a  boarding  house,  a  rented  room 
or  even  a  room  in  the  house  of  a  relative  or  friend,  how- 
ever humble  or  temporary  it  may  be.  But  it  is  the  situ- 
ation arising  from  the  existence  of  a  common  home,  a  place 
of  marital  association  and  mutual  comfort,  broken  up  or 
put  in  peril  of  hardship  or  extinction  by  the  husband's 
death,  which  is  protected  by  the  conclusive  presumption  of 
dependency  established  beyond  the  peraclventure  of  dis- 
pute by  the  statute.  Under  such  circumstances  the  widow 
is  given  the  benefit  of  an  irrefutable  assumption  that  she 


DEPENDENCY  209 

was  supported  by  the  husband.  The  correlative  provision 
in  subsection  (b)  giving  the  husband  the  benefit  of  a  like 
presumption  confirms  this  view.  It  would  seem  almost  ab- 
surd to  hold,  if  conditions  had  been  reversed  and  it  was  the 
husband  who  was  seeking  to  recover,  that  he  was  wholly 
dependent  upon  the  wife  under  the  circumstances  here  dis- 
closed. The  general  purpose  of  the  act  supports  this  con- 
clusion. Workmen's  Compensation  Acts  were  founded  up- 
on the  theory  of  compensation  to  dependents  when  death 
ensues.  This  rests  upon  the  fact  of  dependency.  The  Eng- 
lish Act  makes  dependency  a  question  of  fact  in  all  cases. 
Hodgson  v.  West  Stanley  Colliery  (1910)  A.  C.  229;  Potts 
v.  Niddrie  &  Benhar  Coal  Co.,  Ltd.  (1913)  A.  C.  531.  Our 
Act  makes  an  exception  by  fixing  an  absolute  presumption 
of  dependency  (without  regard  to  what  the  fact  really  is) 
in  favor  of  a  wife  and  of  a  husband  when  there  is  an  act- 
ual living  together.  Each  is  conclusively  presumed  to  be 
totally  dependent  upon  the  other.  It  might  be  extremely 
difficult  to  measure  the  extent  of  dependency  where  the 
wife  was  earning  something  beside  keeping  the  house  and 
performing  the  ordinary  wifely  duties.  Therefore  our  act 
says  that  where  there  is  a  real  living  together  the  fact  of 
dependency  shall  not  be  inquired  into ;  it  shall  be  set  at  rest 
by  a  conclusive  assumption.  It  may  well  be  that  this  was 
a  legislative  concession  to  the  recognized  benefit  to  society 
arising  from  the  living  together  of  husband  and  wife,  and 
that  like  concession  should  not  be  made  to  the  anomalous 
situation  of  a  marital  relation  not  accompanied  by  a  living 
together,  leaving  the  fact  of  dependency  in  such  cases  to 
be  proved  as  it  is  in  all  other  cases.  There  may  be  many 
instances  where  there  is  a  total  dependency  although  there 
is  a  temporary  separation  of  husband  and  wife.  There  may 
be  a  physical  dissociation  and  a  breaking  up  of  the  home 
with  a  definite  purpose  to  resume  the  normal  conditions 
of  married  life.  The  act  provides  for  these  cases  by  re- 
quiring dependency  to  be  determined  in  accordance  with 
the  truth.  But  the  words  'living  together'  do  not  aptly 


210  MANUAL  OF  COMPENSATION  LAW 

describe  such  a  situation.  These  words  are  used  in  antith- 
esis to  living  apart.  They  exclude  a  condition  where 
there  is  neither  a  home  nor  an  actual  dwelling  together,  and 
where  the  suspension  of  this  relation  is  something  more 
than  a  mere  temporary  incident  of  a  changing  family  habi- 
tation. It  seems  plain  that  upon  the  facts  disclosed  on  this 
record  the  decedent  and  his  wife  were  not  living  together 
in  the  sense  in  which  these  words  are  used  in  the  Work- 
men's Compensation  Act.  We  are  constrained  not  to  fol- 
low Northwestern  Iron  Co.  v.  Industrial  Commission,  154 
Wis.  97,  3  N.  C.  C.  A.  670,  142  N.  W.  271,  so  far  as  its 
reasoning  is  inconsistent  with  this  conclusion." 

The  Massachusetts  act  of  1911,  under  which  the  Nel- 
son case  supra  was  decided,  has  been  amended  by  an  act 
of  1914,  c.  708,  §  3,  so  that  now,  in  regard  to  the  question 
under  discussion  it  reads:  "A  wife  upon  a  husband  with 
whom  she  lives  at  the  time  of  his  death,  or  from 
whom  at  the  time  of  his  death  the  industrial  ac- 
cident board  shall  find  the  wife  was  living  apart  for  justi- 
fiable cause,  or  because  he  had  deserted  her.  The  findings 
of  the  board  upon  the  question  of  such  justifiable  cause  and 
desertion  shall  be  final." 

In  re  Gallagher  219  Mass.  140, 106  N.  E.  558,  this  amend- 
ment was  construed  by  the  court.  Mary  E.  Gallagher 
was  the  widow  of  an  employee  who  received  an  injury  on 
December  17,  1912,  and  died  from  its  effects  on  January  15, 
1913.  She  had  been  living  apart  from  him  for  justifiable 
cause  for  about  four  years,  and  he  had  contributed  to  her 
support  by  order  of  court.  She  had  been  obliged,  however, 
to  labor  and  earn  a  large  part  of  the  needful  amount.  The 
industrial  accident  board  held  that  under  these  circum- 
stances she  would  be  conclusively  presumed  to  be  wholly 
dependent  upon  her  husband,  as  a  wife  living  with  her  hus- 
band is  presumed  to  be  by  a  provision  of  the  act.  On  ap- 
peal by  the  insurer  this  decision  was  reversed.  The  court 
called  attention  to  the  fact  that  since  the  death  of  Galla- 
gher the  legislature,  at  the  session  of  1914,  had  amended 


DEPENDENCY  211 

the  act  by  providing  that  if,  at  the  time  of  the  husband's 
death,  the  industrial  accident  board  shall  find  the  wife  was 
living  apart  for  justifiable  cause  or  because  he  had  de- 
serted her,  she  is  conclusively  presumed  to  be  wholly  de- 
pendent upon  her  husband,  but  held  that  the  industrial 
accident  board  should  determine  the  question  of  depend- 
ence in  the  present  instance  under  another  clause  of  the 
statute,  which  provides  that  the  award  shall  be  made  in  ac- 
cordance with  the  facts  as  they  existed  at  the  time  of  the 
injury. 

See  also  In  re  Newman's  Case,  222  Mass.  563,  111  N. 
E.  359,  L.  R.  A.  1916C  1145. 

In  Batista  v.  West  Jersey  &  S.  R.  Co.,  88  Atl.  954,  4  N. 
C.  C.  A.  781,  under  the  New  Jersey  law  the  facts  were  that 
Angelo  Batista  was  killed  while  employed  by  the  company 
named,  on  March  16,  1912,  whereupon  his  widow  petitioned 
for  compensation  under  the  act  of  1911.  It  appeared  that 
the  claimant  had  married  Batista  in  1903,  but  that  she  had 
been  abandoned  by  him  abouf  two  years  later.  No  children 
had  been  born  of  their  marriage,  and  Batista  had  subse- 
quently married  another  woman  by  whom  he  had  three 
children  living  at  the  time  of  this  proceeding.  It  was  rep- 
resented that  while  he  was  living  with  this  family,  the  wom- 
an was  not  his  lawful  widow,  nor  were  she  and  her  chil- 
dren entitled  to  compensation  under  the  act.  The  rights 
of  these  persons  were  not  considered  in  the  instant  pro- 
ceedings, but  as  to  the  claimant  the  court  held: 

"She  was  not  an  actual  dependent  within  the  meaning 
of  the  twelfth  section  of  the  workingmen's  compensation 
act  (P.  L.  1911,  p.  139).  Miller  v.  Public  Service  R.  Co.,  85 
Atl.  1030,  decided  by  this  court  at  the  February  term,  1913, 
is  controlling.  The  petitioner  not  being  an  actual  depend- 
ent, the  judgment  was  not  warranted  by  the  facts  pre- 
sented." 

Under  the  Michigan  act  a  wife  who  voluntarily  left  her 
husband  and  went  to  another  state  and  became  a  school 
teacher,  which  business  she  followed  before  marriage,  it 


212  MANUAL  OF  COMPENSATION  LAW     . 

was  held  that  she  was  not  a  dependent  of  the  workman  who 
was  killed.  Finn  v.  Detroit  Mt.  C.  &  M.  City  Ry.  155  N.  W. 
721  (  Mich.) 

Under  the  English  act  the  question  of  the  dependency 
of  a  wife  not  living  with  her  husband  at  the  time  of  the 
injury  causing  his  death  is  wholly  a  question  of  fact.  Med- 
ler  v.  Medler  (Eng.)  1  B.  W.  C.  C.  332,  Coulthard  v.  Consett 
Iron  Co.  (Eng.)  2KB.  869.  For  further  cases  under  the 
British  act,  see  L.  R.  A.  1916A  (note)  370-371. 

§  175.  Marriage  As  Affecting  Dependency. 

A  woman  who  had  gone  through  a  marriage  ceremony 
and  mistakenly  believed  that  she  was  the  lawful  wife  of  a 
workman,  was  held  not  to  be  "a  member  of  the  family  of 
the  deceased"  or  entitled  to  compensation  on  account  of  his 
death.  Armstrong  v.  Ind.  Comm.  of  Wis.  161  Wis.  530, 
154  N.  W.  844. 

A  woman  had  entered  into  a  common  law  marriage 
in  Ohio,  where  such  marriages  were  valid,  and  moved  to 
California  where  both  had  at  all  times  represented  them- 
selves as  husband  and  wife.  The  husband  was  killed  under 
the  California  act  and  the  wife  was  held  entitled  to  com- 
pensation as  his  widow.  Hill  v.  Fuller  &  Co.,  1  Cal.  Ind. 
Ace.  Comm.  Dec.  155.  To  the  same  effect  see  In  re  Mary 
A.  Gloyd,  Vol.  1,  No.  7,  Bui.  Ohio,  Indus.  Com.  79. 

A  woman  living  as  a  bigamous  wife  without  her  knowl- 
edge was  held  dependent  upon  the  workman  who  had  mar- 
ried her  and  supported  her.  Rossi  v.  Standard  Oil  Co.  2 
Cal.  Ind.  Ace.  Comm.  Dec.  307.  To  the  same  effect  see  In  re 
Elizabeth  A.  Jones,  Vol.  1,  No.  7,  Bui.  Ohio,  Indus.  Com. 
187. 

§  176.  Alien  Dependents. 

It  is  not  necessary  for  an  employee  to  be  a  citizen  of  the 
United  States  in  order  that  he  or  his  dependents,  residing 
in  this  country,  may  recover  the  full  benefits  of  the  act. 
But  under  the  Kentucky  act  if  he  has  no  dependents  resi- 
dent in  this  country,  then  one-half  of  the  benefits  allowed 


DEPENDENCY  213 

to  resident  dependents  will  be  paid  to  the  alien  dependent 
widow  and  children,  L.  1916,  c.  33,  §  14.  But  these  two  are 
the  only  alien  dependents  recognized  by  the  act. 

In  so  far  as  alien  dependents  are  concerned  future  pay- 
ments may  be  commuted  to  the  then  value  thereof  and  paid 
in  a  lump  sum. 

The  acts  of  Connecticut,  New  Jersey  and  Washington 
have  somewhat  similar  provisions. 

An  alien  is  one  born  out  of  the  jurisdiction  and  allegi- 
ance of  the  United  States  and  who  has  not  been  naturalized 
under  the  constitution  and  laws  of  the  United  States  or 
any  one  of  them.  2  Kent's  Com.  (13th  ed.)  50;  1  Bouv. 
Inst.,  §  163 ;  2  Am.  &  Eng.  Ency.  64.  The  statutes  of  each 
state  usually  provide  who  shall  be  citizens. 

In  Petrozino  v.  Am.  Mut.  Liability  Ins.  Co.  219  Mass. 
498,  107  N.  E.  370.  Florinda  Petrozino,  instituted  an 
action  under  the  workmen's  compensation  act,  as  adminis- 
tratrix of  a  deceased  workman.  The  decree  in  the  super- 
ior court  having  been  in  her  favor,  the  insurer  appealed 
and  raised  the  point  that  the  mother  and  sister  of  the  work- 
man were  not  wholly  dependent  upon  him.  This  contention 
was  rejected  and  the  decree  affirmed,  as  indicated  in  the 
following  quotation  from  the  opinion: 

"The  evidence  shows  that  they  are  residents  of  Italy, 
and  having  become  unable  by  reason  of  failing  eyesight  to 
follow  their  usual  occupations  were  forced  to  rely  wholly 
upon  him  for  the  means  of  subsistence.  The  insurer,  how- 
ever, contends,  that  the  6  or  7  cents  a  day  earned  by  an- 
other sister  who  was  a  member  of  the  family,  and  the  re- 
mittances from  time  to  time  to  the  mother  of  various  sums 
by  an  aunt  of  the  decedent  were  sufficient  to  take  the  case 
out  of  the  statute.  But  the  findings,  that  the  remittances 
were  mere  gratuities,  and  that  the  pittance  earned  by  the 
sister  was  hardly  sufficient  for  her  own  maintenance,  and 
that  no  part  was  paid  to  the  dependents  who  never  relied 
upon  either  for  aid,  eliminates  those  relatives  as  contribut- 
ing and  dependable  sources  of  support.  It  being  plain  on 


214  MANUAL  OF  COMPENSATION  LAW 

the  facts  that  during  his  life  the  mother  and  sister  had  no 
other  source  of  income  except  his  earnings,  they,  were 
rightly  found  to  be  wholly  dependent  upon  the  employee, 
and  the  rulings  requested  could  not  be  given." 

A  foreign  consul  can  receive  money  due  citizens  and 
residents  of  his  country  under  the  Ohio  act,  unless  a  power 
of  attorney  has  been  given  to  some  other  person.  Vujic  v. 
Youngstown  Sheet  &  Tube  Co.  220  Fed.  390. 

Under  the  New  Jersey  act  it  was  held  that  the  adminis- 
trator of  an  employee  whose  dependents  were  non-resident 
aliens,  could  not  maintain  an  action  for  the  death  of  the 
employee  under  the  New  Jersey  Act.  De  Biasi  v.  Normandy 
Water  Co.  228  Fed.  234. 

Consuls  or  vice  consuls  may  interpose  claims  for  aliens 
but  they  cannot  receive  property  without  a  specific  author- 
ity from  the  particular  individual  who  is  entitled  to  it.  The 
Bello  Corrunes  6  Wheat  (U.  S.)  167. 

A  wife  and  infant  son  residing  in  Austria-Hungary 
were  entitled  to  compensation  under  the  Ohio  act  for  the 
death  of  the  husband  and  father  injured  in  Ohio.  Vujic  v. 
Youngstown  Sheet  &  Tube  Co.  220  Fed.  390. 

Under  the  English  act  the  nonresident  widow  of  an  al- 
ien workman  was  entitled  to  compensation.  Krzus  v.  Crow's 
Nest  Pass  Coal  Co.  Ltd.  6  B.  W.  C.  C.  271. 

This  is  true  under  the  Illinois  act  of  1913,  Victor  Chemi- 
cal Works  v.  Ind.  Bd.  113  N.  E.  173  (El.)  But,  because  of  a 
statutory  provision  is  not  true  under  the  New  Jersey  act 
of  1911,  Gregutis  v.  Waclark  Wire  Works,  91  Atl.  98  (N.  J.). 

§  177.  Effect  of  Marriage  of  Dependent. 

Under  the  Kansas  and  Kentucky  acts  if  a  person  is  re- 
ceiving compensation  as  a  dependent  and  marries,  the  com- 
pensation at  once  ceases  as  to  that  person.  Upon  reason 
and  principle  this  should  be  the  general  rule,  although  no 
authority  has  been  found  to  support  it. 

§  178.  Effect  on  Dependents  of  Imprisonment  of  Workman. 

In  Boyd's  Workmen's  Compensation,  Vol.  II,  §  536,  it 
is  said:  "In  a  case  where  an  injured  workman  receiving 


DEPENDENCY  215 

weekly  compensation  was  convicted  and  sentenced  to  im- 
prisonment for  a  specified  time  and  the  employer  claimed 
that  the  incapacity  to  earn  wages  was  no  longer  due  to  the 
accident  and  claimed  a  suspension  of  weekly  payments,  the 
court  held  that  the  workman  was  not  entitled  to  receive  his 
entire  weekly  earnings  while  in  prison,  but  that  a  portion 
of  the  compensation  should  be  paid  for  the  support  of  his 
children  during  the  time  of  his  incarceration.  Clayton  v. 
Dobbs,  2  B.  W.  C.  C.  488." 

§  179.  Effect  on  Dependents  of  Release  Given  by  Employee. 

The  fact  that  the  employee  during  his  lifetime  gave 
the  employer  a  release  in  full  of  all  claims  under  the  Work- 
men's Compensation  Act  does  not  defeat  the  claim  of  his 
dependents  if  death  follows  within  limitations,  resulting 
from  the  injury.  The  act  sets  up  two  separate  rights  to 
claim  compensation,  one  in  the  employee  himself  and  the 
other  in  his  dependents. 

In  Milwaukee  Coke  &  Gas  Co.  v.  Industrial  Commission, 
160  Wis.  247,  151  N.  W.  245,  9  N.  C.  C.  A.  597,  where  this 
question  was  up  for  decision,  the  court  said  the  release 
did  not  affect  the  claim  of  the  dependent,  "because  when 
an  employee  with  dependents  is  injured  by  accident  and 
temporarily  disabled  for  a  period  exceeding  a  week,  and 
subsequently  dies  as  a  result  of  his  injuries,  the  Workmen's 
Compensation  Act  undoubtedly  contemplates  the  existence 
of  two  distinct  claims  for  indemnity,  one  by  the  employee 
himself  for  his  temporary  disablement,  and  one  by  the  de- 
pendents for  his  death,  neither  of  which  claims  can  be  dis- 
charged by  the  owner  of  the  other  claim." 

The  facts  of  the  case  just  quoted  were  as  follows: 

The  company  named  brought  action  against  the  indus- 
trial commission  and  Pauline  Dixon  to  set  aside  an  award 
of  the  commission  in  favor  of  Mrs.  Dixon.  This  award  was 
of  the  sum  of  $3,000  as  compensation  for  the  death  of  her 
husband,  Thomas  Dixon.  He  was  an  engineer  on  a  switch 
engine,  and  when  relieved  at  7  o'clock  on  the  evening  of 
March  23,  1912,  started  to  ride  back  to  the  office  on  the 


216  MANUAL  OF  COMPENSATION  LAW 

apron  between  the  engine  and  tender.  He  fell  off,  and  suf- 
fered injuries  which  the  physicians  diagnosed  as  arising 
from  concussion  of  the  brain.  He  was  at  this  time  incapaci- 
tated for  eight  days  and  was  paid  $1.56  by  the  company, 
which  was  the  exact  amount  to  which  he  was  entitled  for  the 
temporary  disability  under  subsection  2  of  section  2394-9  of 
the  statutes,  for  one  day  more  than  the  week  which  he  had 
lost.  At  this  time  he  executed  a  release  of  all  claims.  After 
working  a  large  part  of  the  time  until  the  following  Octo- 
ber, he  became  ill  again,  and  died  December  15.  The  medi- 
cal testimony  was  conflicting,  but  the  court  held  that  there 
was  evidence  to  sustain  the  findings  of  the  commission  that 
the  occurrence  constituted  an  industrial  accident,  and  that 
the  death  was  the  result  of  it.  The  court  further  held  that 
the  release  was  of  no  validity  in  barring  the  widow's  right 
to  compensation  for  two  reasons:  First,  because,  there  be- 
ing no  dispute  that  the  small  amount  paid  Dixon  was  the 
exact  sum  due  for  the  temporary  disability,  there  was  no 
consideration  for  the  release  of  any  other  claim;  and  sec- 
ond, as  above  set  out,  because  the  circumstances  gave  rise 
to  two  distinct  claims,  one  belonging  to  the  employee  him- 
self, and  the  other  accruing  on  his  death  to  the  dependents, 
and  he  could  not  personally  release  the  latter. 

In  re  Cripp,  216  Mass.  586,  104  N.  E.  565,  Ann.  Gas. 
1915B  828,  it  was  held  that  when  a  widow  was  the  sole  de- 
pendent, she  alone  could  discharge  her  right  to  compensation 
and  this  was  not  affected  by  a  settlement  for  the  injuries 
made  by  the  employee  with  a  third  person  previous  to  his 
death. 

In  West  Jersey  Trust  Co.  v.  P.  R.  R.  Co.,  88  N.  J.  Law 
102,  95  Atl.  753,  it  was  contended  that  the  claim  of  two  in- 
fant dependents  suing  for  the  benefits  of  the  act  by  a  guar- 
dian on  account  of  the  death  of  the  father,  was  barred  be- 
cause of  a  release  executed  by  the  father  in  his  life  time  and 
contained  in  his  application  for  admission  into  a  railroad 
relief  association,  and  was  further  barred  by  a  release  by 
their  mother  on  receipt  of  the  death  benefit  from  said  as- 


DEPENDENCY  217 

sociation.  It  was  held  that  neither  the  release  of  the  de- 
cedent nor  the  dependent  widow,  barred  the  claim  of  the  de- 
pendents under  the  act.  The  court  saying:  "The  release  is 
made  by  the  widow  'qua'  widow,  and  of  course  can  not  bind 
the  personal  representative  of  the  deceased  who  sued  by 
right  of  statute." 

§  180.  Payments   to   One   Dependent   for   the   Benefit   of 
Others. 

Generally  the  purpose  of  the  act  is  to  provide  at  least  a 
partial  support  to  those  who  were  actual  dependents  of  a 
deceased  workman,  so  as  to  enable  them  to  maintain  the 
family  in  the. home.  Thus  as  far  as  payment  of  compensa- 
tion is  concerned,  dependents,  where  there  is  a  surviving 
parent  and  children  in  the  same  home,  are  considered  col- 
lectively. Generally  when  one  dependent  is  entitled  by  law 
to  receive  compensation  for  all  a  receipt  from  that  depend- 
ent is  binding  upon  all. 

Where  a  deceased  employee  left  a  wife  and  children  un- 
der 18  surviving  him,  payments  allotted  to  the  infant  chil- 
dren should  be  paid  to  the  surviving  wife.  Woodcock  v. 
Walker,  155  N.  Y.  S.  702,  170  App.  Div.  4. 

When  there  is  a  dependent  mother  and  non-dependent 
brothers  and  sisters,  compensation  is  to  be  awarded  to  the 
mother  alone.  Matecny  v.  Vierling  Stat.  Works  187  111.  App. 
448. 

In  re  Employers'  Liability  Assurance  Corpn.  (McNicol) 
215  Mass.  497,  102  N.  E.  697,  L.  R.  A.  1916A  306,  4  N.  C.  C. 
A.  522,  on  the  point  as  to  the  beneficiaries  to  whom  pay- 
ment should  be  made,  the  supreme  judicial  court  reversed 
the  superior  court  and  the  board  of  arbitration,  and  sus- 
tained the  findings  of  the  industrial  accident  board  that  the 
widow  alone  was  entitled  to  payment.  The  statute  provides 
for  a  conclusive  presumption  of  the  dependence  of  a  wife 
upon  a  deceased  husband,  and  also  of  children  under  18 
years  of  age  upon  the  deceased  parent  with  whom  they  were 
living  at  the  time  of  his  or  her  death  "there  being  no  sur- 
viving dependent  parent."  It  was  held  that  "the  natural 


218  MANUAL  OF  COMPENSATION  LAW 

meaning  of  this  sentence  is  that  the  conclusive  presump- 
tion of  dependency  of  children  is  conditioned  upon  the  non- 
existence  of  a  surviving  dependent  parent."  From  this 
ruling  it  followed  that  the  decree  of  the  superior  court  di- 
viding the  benefits  between  the  mother  and  the  child  must 
be  reversed  and  a  new  decree  entered  giving  the  payments 
entirely  to  the  mother. 

The  case  of  Sexton  v.  Newark  Dist.  Telegraph  Co.,  84  N. 
J.  Law  85,  86  Atl.  451,  3  N.  C.  C.  A.  569,  was  first  appealed 
on  the  ground  that  the  New  Jersey  act  of  1911  was  uncon- 
stitutional. This  point  was  overruled  in  the  above  opinion 
and  the  case  returned  for  a  hearing  on  the  mer- 
its. The  opinion  from  which  quotations  are  given  be- 
low was  the  opinion  of  the  lower  court  which  was  affirmed 
without  comment  in  86  N.  J.  Law,  701,  91  Atl.  1070. 

The  court,  first  cited  the  provisions  of  the  statute  which 
define  dependency,  arid  which  declare  a  conclusive  presump- 
tion in  favor  of  a  wife  living  with  her  husband  at  the  time 
of  his  death,  and  of  a  child  living  with  the  parent  at  the 
time  of  his  death,  there  being  no  surviving  dependent  par- 
ent. The  conclusions  of  the  court  are  set  forth  in  the  follow- 
ing quotations  from  the  opinion  of  Judge  Rugg. 

"It  is  plain  from  this  provision  that  the  widow  is  con- 
clusively presumed  to  be  wholly  dependent.  It  is  equally 
plain  that  the  child  of  the  former  marriage  also  is  conclu- 
sively presumed  to  be  wholly  dependent,  because  in  her  case 
there  is  no  surviving  dependent  parent.  This  language  as 
construed  in  the  McNicol  case,  102  N.  E.  697,  means 
that  the  children  of  the  deceased  who  are  the  chil- 
dren of  the  widow  are  not  conclusively  presumed  to  be  de- 
pendent, because  as  to  them  there  is  a  surviving  parent. 

Reading  the  section  as  a  whole  the  purpose  appears  to 
be,  though  disclosed  not  in  the  clearest  language,  to  di- 
vide the  payments  equally  among  those  conclusively  pre- 
sumed to  be  wholly  dependent.  This  is  manifest  by  express 
words  when  there  are  two  or  more  orphaned  children.  Equal 
division  is  provided  also  when,  in  case  there  is  no  one  con- 


DEPENDENCY  219 

clusively  presumed  to  be  wholly  dependent  and  dependency 
is  determined  as  a  fact,  more  than  one  is  found  to  be  wholly 
dependent.  This  interpretation  may  be  supported  as  con- 
sonant with  what  reasonably  may  be  supposed  to  haVe  been 
the  intent  of  the  legislature. 

It  is  argued  that  the  widow  is  entitled  to  the  whole  sum 
on  the  ground  that  she  stands  in  loco  parentis.  These 
words  are  not  found  in  the  act.  The  voluntary  assumption 
of  the  obligations  of  parenthood  toward  children  of  a  spouse 
by  another  marriage  is  one  favored  by  the  law.  They  may 
be  included  under  the  descriptive  word  'family.'  (Mulhern 
v.  McDavitt,  16  Gray,  404.)  But  there  is  nothing  in  the 
record  at  bar  to  show  that  the  widow  has  assumed  any 
legal  obligation  to  support  the  stepdaughter.  On  the  other 
hand  it  is  agreed  that  she  declines  to  contribute  anything 
to  the  guardian  on  whom  by  law  is  cast  the  duty  of  her 
care.  Parent  commonly  means  the  lawful  father  or  mother 
by  blood.  It  does  not  lend  itself  readily  to  significance  so 
broad  as  to  include  stepfather  or  stepmother,  or  anyone 
standing  in  loco  parentis.  The  use  of  such  other  words  in 
common  speech  of  itself  has  some  tendency  to  indicate  a 
different  meaning.  The  arrangement  of  the  words  'parent* 
and  'child'  in  the  present  act  point  to  the  consanguineous 
relation,  and  not  to  that  by  affinity.  That  it  does  not  in- 
clude one  standing  in  the  place  of  a  parent  seems  to  follow 
from  the  circumstance  that  there  is  no  continuing  obliga- 
tion on  one  who  has  assumed  such  a  relation.  It  may  be 
abandoned  at  any  time.  The  result  is  that  there  should  be 
an  equal  division  between  the  widow  and  the  daughter  of 
the  earlier  marriage  who  has  no  surviving  parent." 

§  181.  Payments  to  Supposed  Dependents. 

Under  the  Kentucky  act  if  the  employer  after  a  rea- 
sonable investigation  has  been  paying  compensation  to  the 
dependent  whom  he  believed  was  entitled  to  it,  such  pay- 
ment made  in  good  faith  will  discharge  his  liability  up  to 
;  the  time  he  receives  notice  in  writing  from  one  claiming 
i  to  be  the  lawful  dependent.    The  employer  can  attempt  if 


220  MANUAL  OF  COMPENSATION  LAW 

he  desires  to  determine  which  of  the  claimants  is  entitled 
to  compensation.  But  he  will  not  be  discharged  from  pay- 
ments made  after  notice  if  he  should  decide  incorrectly.  Ap- 
plication to  the  board  for  a  decision  will  automatically  stop 
compensation  until  a  decision  is  rendered  and  payment  in 
accordance  with  the  board's  decision  will  relieve  the  em- 
ployer of  all  other  liability. 

The  claimant  may,  after  written  notice  to  the  employer, 
file  an  application  with  the  board  for  a  hearing,  setting  up 
the  facts  which  he  thinks  establish  his  prior  right  as  de- 
pendent over  the  person  at  that  time  receiving  compensa- 
tion. 

If  the  decision  of  the  board  is  appealed  from,  the  person 
or  persons  entitled  to  compensation  as  a  result  of  the 
board's  decision  must  give  bond  for  the  protection  of  ad- 
verse claimants  pending  the  outcome  of  the  proceedings. 
The  employer  need  not  pay  compensation  in  case  of  the 
failure  of  the  successful  claimant  to  furnish  bond. 


TREATMENT  OF  INJURIES 

Section. 

182.  Reasons  underlying  provisions  for  medical  attention. 

183.  First  aid. 

184.  Employer  must  furnish  medical  aid,  etc. — meaning. 

185.  When  the  employer  can  select  his  own  physician— when  the 

employee. 

186.  Change  in  treatment. 

187.  Medical,  surgical  or  hospital  fees. 

188.  Physicians    charges  based  on  employee's  ability  to  pay. 

189.  Employer    must    have    knowledge    of    injury    and    reasonable 

opportunity  to  furnish  treatment. 

190.  Nursing  where  not  specified  included  in  "medical  and  surgical 

treatment." 

191.  Nursing  gratuitously  by  members  of  household  not  "reason- 

able expense  incurred." 

192.  Reasons  for  privilege  of  physical  examination. 

193.  Examination  must  be  reasonable — question  of  fact. 

194.  "Refusal  or  obstruction." 

195.  What  is  unreasonable  refusal  to  submit  to  surgical  operation 

*  or  follow  medical  advice. 

196.  When  employee's  conduct  is  reasonable. 

197.  Malpractice  as  affecting  compensation. 

§  182.  Reasons  Underlying  Provisions  for  Medical  Attention. 

Practically  all  of  the  acts  require  the  employer  to  fur- 
nish treatment  for  injuries  within  certain  limits  as  to  time 
and  amount.  The  reasons  why  the  employer  is  required 
to  furnish  the  medical  service  are  that  he  is  generally  bet- 
ter able  to  judge  the  efficiency  of  the  physician  or  surgeon 
than  the  injured  man,  and  because  treatment  for  injuries 
is  one  of  the  hazards  of  business,  the  cost  of  which  the  acts 
throw  on  the  employer.  It  is  also  to  his  interest  to  furnish 
the  very  best  medical  and  surgical  care  for  the  injured  em- 
ployee in  order  to  minimize  the  result  of  the  injury  and  to 


222  MANUAL  OF  COMPENSATION  LAW 

secure  an  early  recovery,  and  in  this  manner  he  gains  com- 
plete knowledge  of  the  condition  of  the  injured  man,  which 
he  is  entitled  to  inasmuch  as  he  is  paying  compensation. 
City  of  Milwaukee  v.  Miller,  154  Wis.  652,  144  N.  W.  188, 
4  N,  C.  C.  A.  149,  L.  R.  A.  1916A  1,  Ann.  Cas.  1915B  847; 
In  re  Panazuk  217  Mass.  589,  105  N.  E.  368. 

§  183.  First  Aid. 

This  term  has  a  definite  meaning  which  has  grown  up 
by  reason  of  its  use  under  employers'  liability  insurance 
policies,  but  that  meaning  does  not  necessarily  apply  here. 
As  used  in  some  of  the  acts  it  means  that  in  an  emergency 
the  injured  employee,  and  perhaps  a  stranger  in  his  behalf, 
may  call  a  physician  for  the  first  attention.  This  doctor  is 
paid  out  of  the  allowance  for  complete  attention,  but  the 
employer  generally  has  the  right  either  to  retain  the  doc- 
tor for  the  subsequent  treatment,  or  to  call  in  another  of 
his  own  choice. 

§184.  Employer  Must  Furnish  Medical  Aid,  Etc.,  Meaning. 

In  re  Panasuk,  217  Mass.  589,  105  N.  E.  368,  5  N.  C.  C. 
A.  688,  the  above  question  was  considered: 

The  Massachusetts  compensation  act  provides  for  the 
furnishing  by  the  insuring  association,  during  the  first  two 
weeks  after  injury,  of  medical  and  hospital  services  and 
medicines.  The  employee  concerned  was  at  work  for  the 
Taunton  Wool  Stock  Co.,  and  a  splinter  became  embedded 
in  his  hand,  causing  an  abscess  and  necessitating  a  surgical 
operation  and  several  dressings  thereafter.  The  industrial 
accident  board  found  that  the  employee  was  an  illiterate 
foreigner,  unable  to  read,  write,  speak  or  understand  the 
English  language.  A  notice,  signed  by  the  Taunton  Dye 
Works  &  Bleachery  Co.,  a  separate  corporation  from  that 
for  which  the  employee  worked,  was  posted  near  his  work- 
ing place,  giving  the  name  of  the  insurance  association  and 
the  names  of  "Doctors  to  whom  to  go  in  case  of  accident 
and  receive  free  medical  attendance."  The  employee  reported 
his  injury  to  the  foreman,  who  did  not  advise  him  regarding 


TREATMENT  OF  INJURIES  223 

his  right  to  medical  attendance,  and  he  went  to  a  physician, 
who  found  need  of  an  immediate  operation.  The  physician 
wrote  to  the  superintendent  of  the  employer,  which  did 
not  then  furnish  any  attendance.  It  was  held  that  the  in- 
dustrial accident  board  had  jurisdiction  to  consider  the 
question  of  the  right  of  the  employee  to  compensation  for 
the  amount  paid  by  hfm  for  medical  attendance;  and  that 
the  duty  of  the  association  to  "furnish"  medical  treatment 
means  something  more  than  a  mere  passive  readiness  to 
provide  it  if  called  for ;  rather,  an  active  effort  to  render  the 
necessary  aid.  The  court  said : 

"The  obligation  to  furnish  medical  and  hospital  serv- 
ices for  the  first  two  weeks  after  the  injury  is  imposed  on 
the  insurer  by  the  express  words  of  the  act.  This  duty 
must  be  performed  or  reasonable  efforts  made  to  that  end 
before  the  statutory  obligation  is  satisfied.  'Furnish'  means 
to  provide  or  supply.  Its  significance  may  vary  with  the 
connection  in  which  it  is  found.  It  is  used  here  to  describe 
a  duty  placed  upon  an  insurer  respecting  a  workman  who 
receives  'a  personal  injury  arising  out  of  or  in  the  course 
of  his  employment.'  Such  a  person  is  manifestly  presumed 
by  the  act  to  be  under  more  or  less  physical  disability  and 
hence  not  in  his  normal  condition  of  ability  to  look  out  for 
himself.  The  word  'furnish'  in  this  connection  imports 
something  more  than  a  passive  willingness  to  respond  to  a 
demand.  It  implies  some  degree  of  active  effort  to  bring 
to  the  injured  person  the  required  humanitarian  relief. 
Reasonably  sufficient  provision  for  rendering  the  required 
service  must  of  course  be  made.  Then  either  express  no- 
tice must  be  given  to  the  employee  or  there  must  be  such 
publication  or  posting  of  the  information  as  warrants  the 
fair  inference  that  knowledge  has  reached  the  employee.  If 
the  insurer  has  made  adequate  arrangements  for  the  care 
of  those  to  whom  the  duty  is  owed  in  the  event  of  injury, 
and  then  by  conspicuous  notices  suitably  posted  in  places 
frequented  by  the  employee  in  a  language  capable  of  be- 
ing read  by  him,  has  given  full  information  of  that  fact, 


224  MANUAL  OF  COMPENSATION  LAW 

and  directions  as  to  steps  to  be  taken  by  an  injured  person 
in  order  to  avail  himself  of  these  arrangements,  a  very 
different  question  would  be  presented.  This  might  go  a 
long  way  toward  proving  compliance  with  the  requirement 
of  the  statute." 

§  185.  When  the  Employer  Can  Select  His  Own  Physician — 
When  the  Employee. 

In  Massachusetts  Bonding  &  Ins.  Co.  v.  Pillsbury  et  al., 
170  Cal.  767,  151  Pac.  419,  11  N.  C.  C.  A.  426  the  court 
said: 

"Under  section  15  (a)  of  the  act,  the  employer  is  re- 
quired to  provide  such  'medical  surgical  and  hospital  treat- 
ment ...  as  may  fte  reasonably  required  at  the  tune  of 
the  injury  and  within  ninety  days  thereafter'  and  in  case 
of  his  neglect  or  refusal  seasonably  to  do  so  he 
is  liable  for  the  reasonable  expense  incurred  by  or 
in  behalf  of  the  employee  in  providing  the  same. 
.  .  .  .  It  may  be  conceded  for  the  purpose  of 
the  argument  that  under  these  provisions  the  employer 
has  the  right,  in  the  first  instance,  to  designate  the  phy- 
sician or  surgeon  who  shall  attend  the  injured  man,  and 
that  if  the  latter,  without  any  reasonable  ground,  refuses 
to  accept  the  services  of  such  physician,  the  cost  of  pro- 
curing medical  treatment  is  upon  him.  It  may  also  be  con- 
ceded that  when  insurance  is  effected  under  the  act  and 
after  proper  notice,  the  insurance  carrier  has  all  the  rights 
of  the  employer  in  this  regard.  Here,  however,  there  is 
evidence  that  Taylor  was  dissatisfied  with  the  advice  given 
him  by  the  surgeon  first  selected  by  the  insurance  company, 
and  after  he  had  communicated  his  dissatisfaction  to  the 
company  he  was  directed  to  go  to  another  surgeon.  Finding 
that  the  surgeon  thus  suggested  by  way  of  substitution 
was  out  of  town  he  went  to  his  family  physician  for  treat- 
ment. While  the  company  might  have  been  entitled  to  in- 
sist upon  its  first  selection,  the  commission  was  author- 
ized, under  the  evidence,  to  conclude  that  this  right  had 
been  waived.  Taylor  on  finding  that  the  surgeon  last  des- 


TREATMENT  OF  INJURIES  225 

ignated  was  not  at  hand,  was  not  bound  to  wait  indefinitely 
until  he  should  return.  The  commission  did  not  exceed  its 
power  in  finding  as  it  impliedly  did,  that  the  injured  man 
acted  upon  reasonable  and  proper  grounds  in  seeking  the 
services  of  his  own  physician." 

Under  the  New  York  act  the  employee  can  not  select 
his  own  physician  unless  the  employer  refuses  or  neglects 
to  provide  one.  Keigher  v.  General  Electric  Co.  (New  York) 
173  App.  Div.  207. 

§  186.  Change  In  Treatment. 

If  the  employer  is  not  giving  the  injured  employee  the 
kind  of  medical,  surgical  and  hospital  treatment  that  the  na- 
ture of  the  injury  demands,  he  may  usually  go  to  a  phy- 
sician of  his  own  choice  at  the  employer's  expense.  Vaughn 
v.  American  Coal  Co.  1  Conn.  Comp.  Dec.  617.  If  the  em- 
ployer thinks  the  workman  will  not  receive  the  proper  treat- 
ment from  a  physician  of  his  selection  the  employer,  or  in- 
surer, can  demand  a  change  of  physicians,  so  long  as  he 
makes  this  demand  within  a  reasonable  time  after  the  first 
treatment  has  been  given.  Bassett  v.  Graf  Elder  Co.  1  Cal. 
Ind.  Ace.  Comm.  Dec.  60. 

§  187.  Medical,  Surgical  or  Hospital  Fees. 

The  Kentucky  act  provides  that  these  fees  "shall  be 
fair  and  reasonable,  shall  be  subject  to  regulation  by  the 
board  and  shall  be  limited  to  such  charges  as  are  reasonable 
for  similar  treatment  of  injured  persons  of  a  like  standard 
of  living  in  the  same  community  and  where  such  treatment 
is  paid  for  by  the  injured  person  himself.  In  considering 
what  fees  are  reasonable  the  board  may  also  consider  the 
increased  security  of  payment  afforded  by  this  act."  §  6 
Chap.  33  Ky.  Laws  1916.  The  acts  of  New  York,  Vermont 
and  Oklahoma  have  similar  provisions. 

It  has  been  held  that  a  physician  can  not  recover  for 
services  to  which  the  employee  is  already  entitled  by  rea- 
son of  membership  in  an  organization  furnishing  medical 
attention  free  to  its  members.  Mahan  v.  Frankfort  General 
Ins.  Co.  2  Cal.  Ind.  Ace.  Comm.  Dec.  530. 


226  MANUAL  OF  COMPENSATION  LAW 

Under  the  California  act  it  was  held  invalid  for  the 
board  to  direct  an  award  of  a  physician's  fee  to  the  person 
entitled  to  receive  it,  without  fixing  the  amount  of  the  fee 
or  naming  the  person.  Pacific  Coast  Casualty  Co.  v.  Pills- 
bury  171  Cal.  ,319,  153  Pac.  24. 

Under  the  California  act  an  award  ordering  the  pay- 
ment of  medical  bills,  subject  to  the  approval  of  the  com- 
mission, was  held  not  to  be  a  final  judgment  subject  to  re- 
view on  certiorari.  Garrett-Callahan  Co.  v.  Industrial  Ace. 
Comm.  171  Cal.  334,  153  Pac.  239. 

§  188.  Physicians'  Charges  Based  on  Employee's  Ability 
to  Pay. 

In  City  of  Milwaukee  v.  Miller  et  al.,  154  Wis.  652,  144 
N.  W.  188,  L.  R.  A.  1916A  1,  Ann.  Gas.  1915B  847,  4  N.  C. 
C.  A.  149,  Henry  Miller  was  employed  by  the  city  of  Mil- 
waukee as  a  laborer,  and  suffered  an  injury  requiring  the 
amputation  of  one  of  his  great  toes.  There  was  infection 
and  a  slow  recovery.  Miller  resided  with  relatives,  a  niece 
and  her  mother,  the  former  of  whom  voluntarily  acted  as 
nurse  without  promise  or  expectation  of  compensation.  The 
statute  provides  that  for  not  exceeding  90  days  from  the 
date  of  the  injury  the  employer  shall  furnish  medical  and 
surgical  treatment,  etc.,  such  "as  may  be  reasonably  re- 
quired." Miller  was  injured  about  October  1,  1912,  and 
only  notified  the  city  of  his  injury  some  three  weeks  there- 
after. He  never  notified  the  city  of  his  needs  of  medical 
attendance,  but  had  employed  one  Dr.  Bradstad  to  treat  him 
on  the  day  of  the  injury,  and  continuously  thereafter  for 
the  full  period  of  90  days.  On  November  17  the  city  volun- 
tarily tendered  Miller  the  services  of  Dr.  Carroll,  a  compe- 
tent physician,  but  these  services  were  not  accepted,  and 
Dr.  Bradstad  continued  in  attendance  some  six  weeks 
longer,  Miller  knowing  that  the  city  was  ready  at  any  time 
to  furnish  him  the  privileges  of  its  physician.  The  record 
showed  135  visits  and  treatments  by  Dr.  Bradstad  during 
90  days,  and  this  physician  verified  the  reasonableness  of 
his  own  bill.  Dr.  Carroll,  under  oath,  condemned  it,  stating 


TREATMENT  OF  INJURIES  227 

that  $50  or  $75  was  ample  for  such  a  case.  The  industrial 
commission,  on  hearing,  allowed  the  full  claim  of  the  physi- 
cian, amounting  to  $222,  also  $32  for  a  nurse,  $5  for  band- 
ages and  supplies,  and  $172.50  for  disability  allowance.  The 
city  brought  an  action  in  the  circuit  court  of  Dane  county 
to  test  this  award,  but  it  was  sustained  in  that  court.  The 
city  then  appealed,  securing  a  modification  of  the  award 
by  eliminating  the  amount  allowed  for  medical  attendance 
and  nurse.  The  court  said  in  part : 

"In  the  light  of  the  foregoing  it  would  seem  that  such  a 
situation  as  the  one  presented  by  the  claim  for  physician's 
services  in  this  case  should  be  viewed  with  eyes  blinded, 
so  to  speak,  to  the  competency  of  the  party  claimed  of  to 
pay,  and  without  a  thought  that  the  latter  can  legitimately 
be  mulcted  as  a  wrong-doer,  in  the  moral  sense,  or  should 
be  required  to  pay  more  or  less  according  to  wealth,  situa- 
tion or  status.  Results  should  not  afford  any  good  reason 
for  apprehending  that  those  influences  popularly  supposed 
to  formerly  have  unduly  characterized  recoveries  by  jury 
interference  still  play  an  efficient  part.  The  directly  re- 
sponsible party  should  be  regarded  as  voluntarily  joining 
with  the  injured  person  in  submitting  to  the  sound  judg- 
ment of  impartial  men  the  question  of  how  much,  under 
the  circumstances,  by  legislative  standards,  should  be  ren- 
dered by  one  to  the  other  as  reparation  for  his  loss. 

Manifestly,  in  case  of  a  claim  such  as  the  one  in  question, 
the  amount  allowed  should  not  be  more  merely  because  of  a 
municipality  being  directly  responsible  than  in  case  of  the 
person  treated  having  to  bear  the  burden.  What  services 
were  reasonably  necessary  and  what  is  a  fair  compensation 
therefor,  are  the  only  legitimate  inquiries.  In  case  of  grave 
doubts  as  to  the  amount  and  the  truth  of  the  matter  resting 
as  here,  solely  on  the  word  of  the  interested  party,  opposed 
by  the  evidence  of  another  competent  to  testify  and  of 
little  or  no  interest  in  the  result,  there  should  be  much  hesi- 
tation, and  generally  refusal,  to  resolve  it  wholly  against 
the  party  from  whom  the  recovery  is  sought.  The  burden  of 


228  MANUAL  OF  COMPENSATION  LAW 

proof  should  be  regarded  as  on  the  claimant  to  establish  his 
claim  with  reasonable  certainty,  and  circumstances  or  evi- 
dence impairing  such  certainty  should  incline  triers  to  re- 
duce the  amount  claimed  sufficiently  to  place  it  safely  with- 
in the  boundaries  of  reason. 

It  will  be  noted  that  there  were  two  visits  and  two  dress- 
ings nearly  every  day  for  the  first  60  days.  That  most  of 
such  service  could  have  been  efficiently  performed  by  any 
fairly  intelligent  attendant  under  the  directions  of  the  physi- 
cian, he  being  easily  within  reach  in  case  of  there  being 
any  special  reason  for  his  presence,  needs  no  evidence  other 
than  our  own  common  sense  and  common  experience  in  life. 
It  must  be  remembered  that  trial  tribunals  are  not,  neces- 
sarily, bound  by  the  testimony  of  experts  merely  because  of 
their  special  knowledge.  One  who  by  reason  of  such  knowl- 
edge is  competent  to  give  opinion  evidence  may  deal  in  such 
exaggerations,  especially  when  they  favor  his  selfish  inter- 
ests, as  in  this  case,  as  to  render  his  evidence  of  little  or  no 
value,  even  when  unopposed  by  evidence  from  the  mouth  of 
any  other  witness.  (Baxter  v.  C.  &  N.  W.  Ry.  Co.,  104  Wis. 
307,  331,  80  N.  W.  644 ;  Bucher  v.  Wis.  Cent.  R.  Co.,  139  Wis. 
597,  120  N.  W.  518.)  It  has  been  often  said  that  opinion 
evidence  is  not  conclusive  in  any  case ;  that  if  it  is  not  within 
the  scope  of  reason  and  common  sense  it  should  not  be  re- 
garded at  all.  Triers  circumstanced  like  the  industrial  com- 
mission, have  a  right  and  duty  to  apply  their  own  common 
sense  and  experience  to  such  a  situation  as  existed  here  and 
not  to  allow  a  claim  which  appears  manifestly  exorbitant 
merely  because  verified  by  the  person  to  be  benefited  by 
its  allowance.  No  more  should  have  been  allowed  in  this 
case  than  would  appear  to  a  reasonable  certainty  fair  in 
case  of  the  injured  man  being  responsible  for  payment  with- 
out any  right  to  reimbursement." 

§  189.  Employer  Must  Have  Knowledge  of  Injury  and  Rea- 
sonable Opportunity  to  Furnish  Treatment. 

In  the  City  of  Milwaukee  v.  Miller  et  al.,  154  Wis.  652, 


TREATMENT  OF  INJURIES  229 

144  N.  W.  188,  L.  R.  A.  1916A  1,  Ann.  Gas.  1915B  847,  4 
N.  C.  C.  A.  149,  Miller  did  not  notify  the  city  of  his  injury 
until  three  weeks  after  it  occurred  and  had  already  employed 
h'is  own  physician,  who  presented  an  exorbitant  bill.  At  a 
reasonable  time  after  notice  the  city  offered  the  services 
of  their  physician,  which  offer  was  refused.  In  holding 
that  the  man  could  not  recover  for  his  physician's  bills 
against  the  city,  the  court  said : 

"Thus,  the  burden  for  all  reasonable  medical  aid  and 
surgical  treatment,  medicine,  etc.,  is  cast  on  the  employer, 
limited  as  to  time,  with  the  very  wise  and  necessary  safe- 
guard against  imposition  that  the  choice  of  the  medical  or 
surgical  attendant  shall  be  left  with  him  and  that,  if  the 
injured  person  unnecessarily  chooses  his  own  physician,  he 
will  do  so  at  the  peril  of  having  to  bear  the  burden  of  the 
expense.  That  is  a  very  valuable  protection  to  injured  per- 
sons as  well  as  to  employers.  The  natural  effect  of  a  firm 
enforcement  of  it  will  be  to  expedite  the  return  of  honest 
claimants  to  the  walks  of  industry  and  prevent  them  from 
having  their  misfortunes  exploited  for  others'  benefit.  If 
the  advantages  to  be  gained  by  a  firm  administration  of 
such  provision  would  be  greater  on  one  side  than  on  the 
other,  it  is  the  side  of  the  employees.  Therefore,  in  case  of 
a  personal  in  jury- to  an  employee  in  the  line  of  his  duty,  the 
law  should  be  construed  and  applied  so  as  to  secure  to  his 
employer  reasonable  opportunity  to  conserve  the  mutual 
interests  of  the  two  parties  to  the  misfortune  by  supplying 
the  medical  and  surgical  needs  of  the  injured. 

The  logic  of  the  foregoing  is  plainly  this:  It  is  the 
duty  of  an  injured  employee  who  needs,  or  supposes  him- 
self to  need,  medical  and  surgical  treatment  to  give  his 
employer  reasonable  notice  thereof.  The  privilege  of  the 
latter,  necessarily, '  implies  the  right  to  reasonable  oppor- 
tunity to  exercise  it.  Such  opportunity  should  ordinarily  be 
accorded  by  the  act  of  the  injured  man,  not  secured  by  the 
employer,  keeping  in  his  service  a  physician  and  surgeon 
charged  with  the  duty  of  discovery.  Note,  that  the  em- 


230  MANUAL  OF  COMPENSATION  LAW 

ployer  is  not  made  liable  for  the  reasonable  expenses  in- 
curred by  or  on  behalf  of  the  employee  in  providing  medical 
aid  and  surgical  treatment,  except  in  case  of  'neglect  or 
refusal  seasonably  to  do  so.'  This  language,  as  indicated, 
by  necessary  inference,  implies  that  he  shall  have  reasonable 
notice  of  the  employee's  need  of  treatment  and  desire  and 
willingness  for  him  to  act  in  the  matter.  The  idea  indulged 
in  below  that  the  provision  casts  a  duty  on  the  employer 
of  active  vigilance  to  discover  the  necessities  of  injured 
employees,  such  as  by  keeping  a  physician  and  surgeon  con- 
stantly employed  and  on  the  alert  to  make  discoveries,  we 
do  not  find  in  the  law  in  letter  or  spirit.  On  the  contrary, 
we  find  such  idea  plainly  negatived  by  the  language  and 
purpose  of  the  enactment.  The  legislature,  certainly,  never 
dreamed  of  casting  any  such  burden  on  employers  as  that 
suggested  by  the  commission  in  its  decision.  To  give  the 
law  the  contrary  cast  by  administration  would  defeat  one 
of  its  most  valuable  safeguards  and  open  up  a  very  inviting 
field  for  the  medical  profession  to  win  discredit — one  which 
doubtless  its  members,  having  high  ideals,  would  gladly 
have  closed,  and  which  justice  to  employer,  employee  and 
the  public  demands  shall  be  closed. 

The  result  is  that  Miller,  since  he  failed  to  notify  his 
employer  of  his  needs,  never  had  competency  to  employ  a 
physician  at  the  expense  of  the  city  of  Milwaukee,  except 
for  such  reasonable  length  of  time  as  necessarily  intervened 
between  his  injury  and  reasonable  opportunity  after  due 
notice  for  the  city  to  exercise  its  privilege.  The  time  could 
not  have  been  long.  How  long  it  is  impossible  to  determine 
from  the  record.  It  is  quite  certain  that  Miller  voluntarily 
selected  Dr.  Bradstad  to  treat  him — not  knowing,  probably, 
of  the  municipality's  privilege  in  the  matter.  That  is  his 
misfortune  and,  however  much  it  may  be  regretted,  it  is 
far  better  that  the  integrity  of  the  law  be  not  invaded  than 
that  it  be  impaired  in  the  slightest  degree  in  the  particular 
instance  to  avoid  the  consequence  of  his  not  knowing  or 
appreciating  its  requirements." 


TREATMENT  OF  INJURIES  231 

§  190.  Nursing,  Where  Not  Specified,  Included  in  "Medical 
and  Surgical  Treatment.'* 

In  city  of  Milwaukee  v.  Miller,  et  al.,  154  Wis.  652,  144 
N.  W.  188,  L.  R.  A.  1916A  1,  Ann.  Cas.  1915B  847,  4  N.  C.  C. 
A.  149,  it  was  said: 

"The  services  of  the  nurse  for  which  $32  was  allowed 
were  rendered  during  the  first  four  weeks  after  the  injury. 
It  is  noticeable  that,  notwithstanding  Dr.  Bradstad  visited 
his  patient  twice  each  day  for  some  forty  days  thereafter, 
the  recovery  had  so  far  progressed  that  services  of  a  nurse 
were  considered  unnecessary.  The  scheme  of  the  legislature 
included  definite  specifications  of  just  what  burdens  an 
employer  shall  bear  for  the  benefit  of  his  injured  employee. 
No  mention  is  made  in  such  specifications  of  services  of  a 
nurse  during  the  first  ninety  days.  Therefore,  compensation 
of  that  sort  must  be  regarded  as  not  within  legislative  con- 
templation, except  as  included  in  the  term  'medical  and 
surgical  treatment  .  .  .  reasonably  required.'  It  has 
become  so  common  for  a  physician  or  surgeon  to  have  a 
nurse  as  his  assistant,  in  cases  requiring  attention  at  shorter 
intervals  than  he  can  well  be  present,  that  the  major  service 
may  well  be  regarded  as  including  the  minor  attention,  in 
all  cases  where  a  nurse  is  employed  by  the  physician  or  sur- 
geon, or  by  his  direction,  and  the  services  are  an  incident  of 
the  treatment;  and  that  would  obtain  whether  the  medical 
or  surgical  attendant  is  engaged  by  the  employer  and  em- 
ployee. In  neither  case  is  there  any  warrant  in  the  law, 
as  it  seems,  for  allowing  compensation  for  services  of  a 
nurse,  other  than  incidental  to  medical  or  surgical  atten- 
tion, during  the  ninety  days  immediately  succeeding  the 
injury." 

It  has  been  held  in  California  that  the  employer  is  only 
liable  for  the  services  of  a  nurse  when  the  attending  physi- 
cian, authorizes,  requires  or  consents  to  such  treatment. 
Hughes  v.  Degen  Belting  Co.,  1  Cal.  Ind.  Ace.  Com.  Dec. 
203. 


232  MANUAL  OF  COMPENSATION  LAW 

§  191.  Nursing  Gratuitously  by  Members  of  Household  Not 
"Reasonable  Expense  Incurred." 

In  City  of  Milwaukee  v.  Miller  et  al.,  154  Wis.  652,  144 
N.  W.  188,  L.  R.  A.  1916A  1,  Ann.  Gas.  1915B  847,  4  N. 
C.  C.  A.  149,  the  court  said:  "What  has  been  said,  suffi- 
ciently for  the  case,  disposes  of  the  claim  for  services  of  a 
nurse;  but  another  reason  is  advanced  why  the  allowance 
should  not  have  been  made  here  under  the  circumstance 
that  the  service  was  voluntarily  performed  by  a  relative  of 
Miller,  who  resided  in  the  house  with  him,  without  promise 
or  expectation  of  compensation.  The  fact  that  she  was  a 
minor  makes  no  difference.  Whatever  she  did  was  done 
substantially  in  the  presence  of  her  mother  and  evidently 
with  the  latter's  sanction.  As  the  mother  was  a  nearer 
relative  of  Miller  than  the  niece  who  performed  the  service, 
if  the  question  whether  the  attention  is  compensable  as  a 
legal  liability,  be  referable  to  the  attitude  of  the  former, 
the  inference  is  all  the  stronger  that  the  same  was  intended 
to  be  gratuitous." 

The  court  then  suggested  that  the  commission  "probably 
applied  the  rule  in  negligence  cases  that  he  who  .is  liable 
for  damages  for  a  tortious  act  can  not  mitigate  the  amount 
of  the  recovery  by  taking  advantage  of  the  gratuitous  serv- 
ice or  loving  care  of  friends"  in  awarding  compensation  for 
the  nursing  of  this  girl,  and  concluded  as  follows: 

"This  extreme  and  rather  harsh  rule  is  characterized  by 
a  penal  element,  grounded  on  the  moral  turpitude  of  the 
wrongful  act.  .Under  the  statutory  system  for  dealing  with 
personal  injury  losses  incident  to  performance  of  the  duties 
of  an  employer,  they  are  regarded  as  mutual  misfortunes 
to  be  charged  up,  as  directly  as  practicable,  to  the  cost  of 
production.  The  right  to  have  the  employer  regarded  as 
an  agency  to  make  payment  to  the  employee  and  absorb  the 
same  as  an  expense  of  the  industry,  regardless  of  whether 
the  loss  is  attributable  to  any  human  fault,  is  a  legislative 
creation  within  the  constitutional  exercise  of  the  police 
power  to  legislate  for  the  public  welfare.  It  is  not  charity 


TREATMENT  OF  INJURIES  233 

but  the  recognition  of  a  moral  duty  and  the  erection  of  it 
into  a  legal  obligation  of  the  public,  not  of  the  mere  em- 
ployer, to  compensate,  reasonably,  those  who  are  injured 
while  in  the  employment  of  others,  as  a  part  of  the  natural, 
necessary  cost  of  production;  that  obligation  being  dis- 
charged through  the  agency  of  the  employer. 

Thus  the  reason  of  the  old  rule  applicable  to  wrongs 
does  not  furnish  any  sound  basis  for  allowing  compensation 
for  the  services  of  a  nurse  under  the  circumstances  of  this 
case.  The  beneficence  of  the  law  in  recognizing  moral  duty, 
goes  no  further  than  its  specifications,  read  in  the  spirit  of 
the  enactment.  That  does  not  go  to  .the  extent  of  mulcting, 
indirectly,  consumers  to  compensate  for  services  gratui- 
tously performed  in  taking  care  of  injured  persons.  It  is 
confined  to  the  reasonable  expense  incurred  by  or  on  behalf 
of  the  employer  in  providing  the  specific  elements  of  relief 
mentioned  in  subdivision  1,  sections  2394-9  of  the  statute; 
giving  to  the  words  'reasonable  expense  incurred'  their  fair 
meaning,  in  the  light  of  the  system  the  legislature  created. 
'Reasonable  expense  incurred'  should  be  viewed  from  the 
standpoint  of  the  injured  person,  where  reasonably  neces- 
sary, being,  by  law,  the  agent  of  the  employer  to  act  in 
their  mutual  interests  in  incurring  the  expense — the  pos- 
sessor, so  to  speak,  of  a  power  in  trust  and  in  duty  bound 
to  act  fairly  for  both  parties.  The  more  clearly  it  is  appreci- 
ated that  the  basic  logic  of  the  law  is  mutuality  of  interest 
between  employers,  employees  and  the  public,  and  that  each 
actor  is  charged  with  the  duty  of  promoting  the  mutual  in- 
terests, the  more  apparent  the  high  ideal  the  legislature 
had  in  mind  in  creating  the  new  system,  and  the  greater 
the  prospect  of  such  ideal  being  realized.  Nothing  short  of 
reasonable  expenditure  of  money,  or  incurring  of  legal  lia- 
bility to  expend  money  for  the  purposes  contemplated  in 
the  act,  can  be  held  to  satisfy  the  legislative  conception  of 
'reasonable  expenses  incurred,'  as  the  words  were  used  in 
the  act.  The  services  of  a  nurse  in  this  case  obviously  do 
not  fall  within  such  meaning." 


234  MANUAL  OF  COMPENSATION  LAW 

§  192.  Reasons  for  Privilege  of  Physical  Examination. 

An  employer  has  the  right  to  demand  that  the  employee 
submit  himself  to  physical  examination  by  duly  qualified 
physicians  or  surgeons  at  reasonable  times  and  places  under 
reasonable  conditions,  so  long  as  the  employee  is  claiming 
compensation.  The  employer  must  bear  the  expense  of  the 
examination,  but  the  employee  may  pay  his  own  physician 
and  have  him  present.  If  the  employee  refuses  to  permit 
examination  or  obstructs  it  compensation  payments  are 
lapsed  during  the  period  of  refusal. 

The  compensation  act  does  away  with  negligence  and 
requires  the  employer  to  pay  the  benefits  of  the  act  for  all 
injuries  by  accident  arising  out  of  and  in  the  course  of 
employment.  This  naturally  increases  the  burden  of  the 
employer.  He  is  also  bound  to  furnish  proper  medical  and 
surgical  treatment.  The  act  speaks  in  terms  of  disability 
and  the  employer  pays  on  the  same  basis.  Therefore,  he  is 
given  the  right,  under  reasonable  conditions  to  prevent 
abuse,  to  examine  the  employee  receiving  or  claiming  com- 
pensation, at  reasonable  intervals  in  order  to  ascertain 
what  the  extent  and  probable  duration  of  the  injuries  are 
and  whether  the  employee  is  malingering. 

§  193.  Examination  Must  Be  Reasonable — Question  of  Fact. 

The  employer  must  be  reasonable  in  the  time,  place  and 
number  of  examinations  he  demands  and  the  conditions 
under  which  he  demands  them.  If  the  employee  refuses 
to  submit,  the  employer  can  stop  payments  and  apply  for  a 
determination  of  the  question  or  he  can  let  the  matter  re- 
main in  statu  quo  until  the  employee  demands  a  hearing. 
But  if  it  is  decided  that  the  employee's  refusal  was  reason- 
able the  employer  must  pay  the  back  payments  with  inter- 
est. Whether  or  not  a  demand  or  refusal  is  reasonable  is  a 
question  of  fact  for  the  board. 

In  Osborne  v.  Vickers,  2  Q.  B.  91,  2  W.  C.  C.  130,  Har- 
per's Workmen's  Comp.,  §  81,  the  English  court,  construii 
a  similar  section,  is  quoted  as  follows:    "Schedule  1  (4)  of 


TREATMENT  OF  INJURIES  235 

the  Workmen's  Compensation  Act  confers  upon  the  em- 
ployer a  right  to  have  a  workman  who  has  given  notice 
of  an  accident,  examined  medically,  and  there  is  a  duty 
on  the  part  of  the  workman  to  submit  himself  to  examina- 
tion, but  the  statute  is  silent,  and  the  rules  are  partially, 
and  I  may  say  mainly,  silent  as  to  the  time,  the  place  and 
the  conditions  of  this  examination.  Under  those  circum- 
stances practically  the  common  rule  of  law  applies  and 
imposes  upon  both  parties  the  duty  of  acting  reasonably  in 
obeying  the  statute.  Now  it  seems  to  me  that  the  question 
whether  or  not  one  side  or  the  other  has  acted  reasonably 
in  a  particular  case,  is  a  question  of  fact  in  that  particular 
case." 

§  194.  "Refusal  or  Obstruction." 

It  has  been  held  that  a  workman  is  not  entitled  as  a 
matter  of  law  to  have  his  own  doctor  present.  Morgan 
v.  Dixon,  5  B.  W.  C.  C.  184,  L.  R.  A.  1916A  (note)  161. 
And  for  a  workman  to  refuse  to  be  examined  except  in 
the  office  and  in  the  presence  of  his  legal  adviser  has  been 
held  "refusal"  to  submit.  Warby  v.  Plaistowe,  4  B.  W. 
C.  C.  67,  L.  R.  A.  1916A  (note)  161.  To  go  outside  of  the 
jurisdiction  and  refuse  to  return  without  payment  of  travel- 
ing expenses  is  not  an  "obstruction."  Baird  v.  Kane,  7  Sc. 
Sess.  Gas.,  5th  Series,  461,  L.  R.  A.  1916A  (note)  161.  But 
where  an  injured  workman  goes  to  a  far-distant  country 
without  advising  his  employer  and  without  leaving  his  ad- 
dress such  conduct  is  an  "obstruction"  of  medical  exam- 
ination. Finnic  v.  Duncan,  7  Sc.  Sess.  Gas.,  5th  Series,  254, 
L.  R.  A.  1916A  161. 

When  an  employee  misunderstood  the  instructions  of  the 
company's  doctor,  and  did  not  return  for  further  treatment 
as  he  was  told  to  do,  and  when  later  he  lost  a  toe,  which 
might  or  migh,t  not  have  been  saved  by  the  treatment,  it 
was  held  that  this  was  not  such  a  refusal  as  defeated  his 
right  to  compensation.  Pontiatowski  v.  Stickley  Bros.  Co. 
(Mich.),  160  N.  W.  569. 


236  MANUAL  OF  COMPENSATION  LAW 

§  195.  What  Is  Unreasonable  Refusal  to  Submit  to  Surgical 
Operation  or  Follow  Medical  Advice. 

Whether  or  not  the  action  of  an  employee  in  refusing 
to  submit  to  a  surgical  operation  or  in  failing  to  follow 
competent  medical  advice,  is  reasonable,  has  almost  uni- 
versally been  held  to  be  a  question  of  fact,  to  be  determined 
by  a  careful  inquiry  into  the  circumstances  of  each  case. 
What  would  be  reasonable  in  one  man's  case,  might  be  held 
unreasonable  in  that  of  another.  There  are  a  large  number 
of  precedents  established,  and  it  may  be  said  that,  as  a 
general  rule,  the  employee's  conduct  is  held  unreasonable 
when  his  own  and  his  employer's  doctors  are  unanimous  as 
to  the  course  of  treatment  which  he  refuses  to  follow. 

In  Walsh  v.  Locke,  etc.  (Eng.),  W.  C.  Ins.  Rep.  98,  6 
N.  C.  C.  A.  675,  a  collier  injured  the  middle  finger  of  his 
right  hand.  An  operation  failed  to  cure  the  member.  He 
refused  an  operation  to  remove  the  finger  although  the 
doctor  advised  it  would  restore  his  original  capacity  for 
work.  The  court  said :  "There  is  of  course  no  question  of 
compelling  the  party  to  submit  to  an  operation.  The  ques- 
tion is  whether  a  party  who  declines  to  undergo  what  would 
be  described  by  experts  as  a  reasonable  and  safe  operation 
is  to  be  considered  as  a  sufferer  from  the  effect  of  an 
injury  received  in  the  course  of  his  employment,  or  whether 
his  suffering  and  consequent  inability  to  work  at  his  trade 
ought  not  to  be  attributed  to  his  voluntary  action  in  declin- 
ing to  avail  himself  of  reasonable  surgical  treatment.  The 
law  as  laid  down  by  Warncken  v.  R.  Mbreland  &  Son,  Ltd., 
supra,  was  also  followed  in  Marshall  v.  Orient  S£eam  Navi- 
gation Co.,  Ltd.  (1910),  1  K.  B.  79;  7  L.  J.  K.  B.  204,  101 
L.  J.  584,  26  J.  L.  R.  70,  54  Sol.  J.  64,  3  B.  W.  C.  C.  15, 
where  Cozens-Hardy,  M.  R.,  said :  "The  true  test  is  wheth- 
er the  continued  disability  is  due  to  the  accident  or  to  the 
man's  unreasonableness  in  refusing  to  submit  to  the  opera- 
tion. The  question  of  unreasonableness  is  one  of  fact  or  of 
inference  from  fact.  There  have  been  cases  where  there 
has  been  conflicting  medical  testimony,  and  in  such  cases 


TREATMENT  OF  INJURIES  237 

if  there  is  evidence  of  the  man's  own  doctor,  who  is  com- 
petent to  judge,  that  an  operation  would  be  attended  with 
risk,  then  refusal  to  submit  to  the  operation  would  not  be 
unreasonable.  .  .  .  The  question  is  one  of  fact,  and  on 
the  facts  as  proved,  it  is  impossible  to  come  to  any  other 
conclusion  than  that  the  man  unreasonably  refused  to  take 
a  step  which  any  reasonable  man  would  willingly  submit  to." 

Compensation  may  be  refused  or  stopped,  if  already  al- 
lowed, if  the  disability  is  aggravated,  caused  or  continued  by 
an  unreasonable  refusal  on  the  part  of  an  injured  person 
to  submit  to  competent  surgical  treatment  or  follow  medical 
advice.  What  is  an  "unreasonable  refusal?" 

Where  a  man's  own  doctor  advised  him  to  refuse  to 
submit  to  an  operation  because  an  anaesthetic  would  be 
dangerous  on  account  of  his  diseased  condition,  although 
the  doctor  for  the  employer  stated  the  contrary,  it  was 
held  the  refusal  was  not  unreasonable.  Tutton  v.  S.  S. 
"Majestic,"  2  B.  W.  C.  C.  346,  6  N.  C.  C.  A.  676  (note). 
The  burden  of  proving  unreasonableness  rests  on  the  em- 
ployer. Marshall  v.  Orient  Steam  Nav.  Co.,  Ltd.,  3  B.  W. 
C.  C.  15,  6  N.  C.  C.  A.  677  (note). 

Refusal  to  undergo  a  simple  operation  unattended  by 
dangerous  consequences  to  remove  the  cause  of  disability, 
contrary  to  advice  of  competent  surgeons,  is  unreasonable 
conduct  and  bars  the  applicant  from  further  compensation. 
Warncken  v.  R.  Moreland  &  Son,  Ltd.  (1909),  leading  Eng. 
Case,  2  B.  W.  C.  C.  350,  6  N.  C.  C.  A.  677  (note)  ;  Padding- 
ton  Burough  Council  v.  Stack,  2  B.  W.  C.  C.  402,  6  N.  C.  C. 
A.  678  (note)  ;  Gilbert  Co.  v.  Fairweather,  1  B.  W.  C.  C. 
349,  6  N.  C.  C.  A.  678  (note)  ;  Donnelly  v.  Baird  Co.,  Ltd., 
1  B.  W.  C.  C.  95,  6  N.  C.  C.  A.  678  (note) .  Where  an  in- 
capacitated workman  had  already  undergone  two  opera- 
tions for  an  injury  to  his  hand  and  was  advised  that  a  third 
would  restore  his  capacity  to  work  but  refused,  it  was  held 
that  his  incapacity  from  that  time  was  from  his  refusal  and 
not  from  the  injury  and  further  compensation  was  disal- 
lowed. Anderson  v.  Baird  &  Co.,  Ltd.,  40  Sc.  L.  R.  263, 


238  MANUAL  OF  COMPENSATION  LAW 

6  N.  C.  C.  A.  678  (note) .  It  was  held  otherwise  where  his 
own  doctor  advised  that  the  danger  was  not  great  but  the 
beneficial  results  doubtful.  Hawkes  v.  Richard  Coles  & 
Sons,  3  B.  W.  C.  C.  163,  6  N.  C.  C.  A.  678  (note) .  Failure 
to  take  exercise  as  directed  has  been  held  to  reduce  com- 
pensation already  paid.  Upper  Forest  &  Worcester  Steel  & 
Tin  Plate  Co.,  Ltd.,  v.  Gray,  3  B.  W.  C.  C.  424,  6  N.  C.  C.  A. 
679  (note).  ,  Also  as  a  ground  for  refusing  compensation. 
Dowds  v.  John  Bennie  &  Sons,  40  Sc.  L.  R.  239,  6  N.  C.  C. 
A.  679  (note)  ;  lanzewski  v.  Central  Locomotive  &  Car 
Works,  111.  Ind.  Bd.,  May  1,  1914 ;-  David  v.  Windsor  Steam 
Coal  Co.,  Ltd.,  4  B.  W.  C.  C.  177,  6  N.  C.  C.  A.  679  (note) . 

Where  a  workman  refused  to  go  to  a  hospital,  although 
advised  by  his  own  as  well  as  the  employer's  doctor  to 
take  treatment  for  an  infection,  it  was  held  an  unreason- 
able refusal  and  he  was  awarded  compensation  for  such 
time  as  would  have  been  consumed  in  undergoing  treatment 
at  the  hospital.  Voge  v.  Rauf  Co.,  Wis.  W.  C.  Rep.  (1914) 
40,  6  N.  C.  C.  A.  679  (note).  Where  a  man  received  a  deep 
cut  on  the  heel  of  the  hand  and  was  discharged  a  week 
afterward  and  entered  a  boxing  match  that  night  contrary 
to  the  advice  of  his  physician,  as  a  result  of  which  the 
wound  was  reopened,  became  infected  and  finally  caused  the 
loss  of  the  bones  of  his  hand  and  wrist,  the  Wisconsin  Indus- 
trial Board  denied  compensation.  Kill  v.  Plankinton  Pack- 
ing Co.,  Wis.  Workm.  Comp.  Rep.  (1914)  83,  6  N.  C.  C.  A. 
679  (note). 

Where  at  the  time  of  making  the  award  it  seems  prob- 
able that  an  operation  will  be  necessary  to  remove  the  dis- 
ability, compensation  may  be  allowed  conditioned  upon  sub- 
mission to  operation  at  the  proper  time.  Gordon  v.  Evans, 
1  Cal.  Ind.  Ace.  Comm.  Dec.  (No.  14,  1914),  12;  Haley  v. 
Hardenberg  Miss.  Co.,  1  Cal.  Ind.  Ace.  Comm.  Dec.  (No.  8, 
1914)  127,  6  N.  C.  C.  A.  682  (note). 

I,t  was  held  in.  Massachusetts  that  an  employee  was 
bound  to  submit  to  an  operation  where  there  was  no  unusual 
risk  when  the  result  would  likely  be  a  partial  if  not  a 


TREATMENT  OF  INJURIES  239 

complete  restoration  of  an  injured  member.  Floccher  v. 
Fidelity  &  Deposit  Co.  of  Maryland,  221  Mass.  54,  108 
N.  E.  1032. 

Where  there  was  little  danger  from  an  operation  and 
the  employee  refused  to  have  it  performed,  it  was  held  to 
be  erroneous  for  the  board  to  award  compensation  during 
such  refusal  under  the  Michigan  Act.  Kricinovich  v.  Amer- 
ican Car  &  Foundry  Co.  (Mich.),  159  N.  W.  362. 

See  further  notes,  6  N.  C.  C.  A.  403-405,  6  N.  C.  C.  A. 
675-684,  10  N.  C.  C.  A.  185-201,  10  N.  C.  C.  A.  99S-iu06, 
L.  R.  A.  1916A  387-389. 

§  196.  When  Employee's  Conduct  Is  Reasonable. 

Where  there  is  a  disagreement  between  the  claimant's 
physicians  and  those  of  the  employer  as  to  the  advisability 
or  success  of  an  operation  .the  trend  of  the  decisions  is  to 
hold  that  a  refusal  on  the  part  of  the  employee  is  reason- 
able. Ruabon  Coal  Co.  v.  Thomas,  3  B.  W.  C.  C.  32,  6  N.  C. 
C.  A.  682  (note)  ;  Molamphy  v.  Sheridan,  W.  C.  &  Ins.  Rep. 
20,  6  N.  C.  C.  A.  682  (note)  ;  Rothwell  v.  Davis,  5  W.  C.  C. 
141,  6  N.  C.  C.  A.  683  (note)  ;  Sweeney  v.  Pumpherston  Oil 
Co.,  Ltd.,  40  Sc.  L.  R.  721,  6  N.  C.  C.  A.  683  (note).  The 
same  is  true  where  the  doctors  differ  in  the  propriety  of 
treatment,  Moss  &  Co.  v.  Akers,  4  B.  W.  C.  C.  294,  6  N.  C. 
C.  A.  683  (note) .  '  Also  when  certainty  of  improvement 
as  a  result  of  the  operation  is  not  shown.  Mercurio  v.  Cal- 
ifornia Transportation  Co.,  1  Cal.  Ind.  Ace.  Comm.  Dec. 
(No.  16,  1914)  11.  Where  an  injured  workman  while  de- 
lirious did  things  contrary  to  the  doctor's  instructions  and 
got  out  of  bed  and  subsequently  died  possibly  from  the  ef- 
fects of  these  acts,  it  was  held  that  the  rights  of  his  depend- 
ents to  death  benefits  were  not  thereby  affected.  Broghi 
v.  Hammond  Lumber  Co.,  1  Cal.  Ind.  Ace.  Comm.  Dec.  (No. 
8,  1914).  Where  an  employee,  injured  by  a  blow  in  the 
stomach,  was  advised  by  a  physician,  whose  diagnosis  was 
confirmed  by  others,  that  an  immediate  operation  was 
necessary  to  save  his  life  and  that  the  chances  of  recovery 


240  MANUAL  OF  COMPENSATION  LAW 

were  nine  out  of  ten  in  his  favor,  refused  to  submit,  but 
consented  fifteen  hours  later,  and  died  after  two  days  of 
pneumonia,  and  where  there  was  no  evidence  that  an  earlier 
operation  would  have  saved  his  life,  his  actions  did  not  as  a 
matter  of  law  defeat  his  widow's  claim  for  compensation. 
Jendrus  v.  Detroit  Steel  Products  Co.,  et  al.,  178  Mich.  265, 
144  N.  W.  563,  4  N.  C.  C.  A.  864,  L.  R.  A.  1916A  381, 
Ann.  Gas.  1915D  476. 

In  that  case  the  court  said: 

"In  none  of  the  cases  cited  by  appellants'  counsel  was 
the  operation  anything  more  than  a  minor  operation  for  a 
trifling  injury.  We  think  the  cases  clearly  distinguishable 
from  the  instant  case,  which  involved  a  major  operation  of 
a  serious  nature.  None  of  the  testimony  in  the  case  goes 
to  the  length  of  showing  that  Jendrus'  life  would  have  been 
saved  had  the  operation  been  submitted  to  at  8  o'clock  on 
the  evening  of  February  14,  which  was  the  first  time  that 
Dr.  Hutchings  had  reached  the  conclusion  that  an  operation 
was  necessary.  Peritonitis  had  already  set  in,  and  the 
vomiting  had  commenced,  and  vomitus  of  a  fecal  nature 
was  then  being  expelled.  That  it  was  the  injury  which 
caused  the  peritonitis  is  not  questioned;  that  it  was  the 
peritonitis  which  caused  the  vomiting  of  fecal  matter  is  not 
questioned;  that  it  was  the  taking  of  fecal  matter  into  the 
lungs  which  caused  the  pneumonia  is  claimed  by  all  of  the 
surgeons  who  testified.  There  is  testimony  that  he  might 
have  recovered  without  any  operation,  although  that  result 
could  not  have  been  reasonably  expected.  Under  all  the 
circumstances  of  the  case,  including  the  fact  that  Jendrus 
was  a  foreigner,  unable  to  speak  or  understand  the  English 
language,  that  he  was  suffering  grea,t  pain  on  the  evening 
of  the  14th,  that  he  was  unacquainted  with  his  surround- 
ings, and  that  he  did  consent  to,  and  did  submit  to,  an 
operation  within  fifteen  or  sixteen  hours  after  it  was  first 
found  necessary,  in  the  judgment  of  the  surgeons,  we  can 
not  hold,  as  matter  of  law,  that  the  conduct  of  Jendrus  was 
so  unreasonable  and  persistent  as  to  defeat  the  claim  for 


TREATMENT  OP  INJURIES  241. 

compensation  by  his  widow.  Neither  can  we  hold  that 
Jendrus  by  his  conduct  in  the  premises  in  causing  a  delay 
in  the  operation  was  guilty  of  intentional  and  willful  miscon- 
duct. We  can  not  say,  as  matter  of  law,  that  the  indus- 
trial accident  board  erred  in  its  conclusions  of  law  in  af- 
firming the  action  of  the  committee  on  arbitration.  No 
other  questions  of  law  are  presented  by  the  record." 

Where  a  claimant  was  ordered  to  submit  to  an  operation 
for  femoral  hernia,  the  ruling  was  held  erroneous,  on  the 
ground  that  the  claimant's  refusal  was  not  unreasonable 
where  a  risk  of  life  was  involved.  McNally  v.  Hudson  & 
M.  R.  Co.,  95  A.  122,  87  N.  J.  L.  455. 

See  further  notes  on  this  subject  in  6  N.  C.  C.  A.  675- 
684,  6  N.  C.  C.  A.  403-405,  10  N.  C.  C.  A.  185-201,  10  N.  C. 
C.  A.  998-1006,  L.  R.  A.  1916A  387-389. 

§  197.  Malpractice  As  Affecting  Compensation. 

In  Viita  v.  Dolan  (Minn.),  1916,  155  N.  W.  1077,  the 
court,  in  holding  that  the  employer  was  not  liable  under 
the  Minnesota  Act  for  disability  caused  by  malpractice, 
said:  "It  by  no  means  follows  that  the  one  whose  negli- 
gence causes  the  original  injury  is  liable  for  the  negligence 
of  the  physician  employed  to  treat  it,  and  it  is  clearly  not 
true  that  the  physician  is  not  liable  to  the  patient  for  such 
negligence.  When  it  appears,  as  it  clearly  does  here,  that 
there  is  a  liability  on  the  part  of  the  physician  to  the 
patient,  it  is  a  strain  to  hold  that  a  settlement  between  the 
injured  man  and  the  wrong-doer  for  the  injury  by  the  acci- 
dent, whether  made  under  the  compensation  act  or  outside 
of  it,  includes  the  claim  that  the  injured  man  has  against 
his  physician  for  a  separate  and  subsequent  injury." 

Section  5  of  the  Kentucky  Act  specifically  meets  this  sit- 
uation, but  does  not  affect  the  employee's  action  for  mal- 
practice against  the  physician.  The  effect  of  the  latter 
part  of  this  section  is  that  under  no  conditions  is  the  em- 
ployer subject  to  a  suit  for  damages  merely  because  the 


242  MANUAL  OF  COMPENSATION  LAW 

doctor  or  hospital,  to  which  the  employer  sent  the  injured 
workman,  was  negligent  in  their  treatment  of  him. 

In  Delia  Rocca  v.  Stanley  Jones  &  Co.  (Eng.),  1914  W. 
C.  &  Ins.  Rep.  34,  6  N.  C.  C.  A.  624,  7  B.  W.  C.  C.  101,  the 
court,  in  denying  a  recovery  against  the  employer  for  mal- 
practice of  the  physician,  said  (quoting  Humber  Towing 
Co.,  Ltd.,  v.  Barclay,  5  B.  W.  C.  C.  142)  :  "In  this  case  we 
have  been  asked  by  Mr.  Owen  to  say  not  only  that  the  em- 
ployer is  liable,  in  the  words  of  the  act,  for  a  personal  injury 
by  accident  arising  out  of  and  in  the  course  of  the  employ- 
ment, but  that  he  is  an  insurer  of  the  medical  man,  the 
chemist  and  the  nurse  who  attended  the  man,  and  is  liable 
in  the  event  of  any  of  them  being  guilty  of  gross  negli- 
gence, which  gross  negligence  might  be  found  as  a  fact  to 
be  the  real  cause  of  the  disability  at  the  time  the  matter 
came  before  the  county  judge." 

In  Pawlak  v.  Hayes,  162  Wis.  503,  156  N.  W.  464,  11 
N.  C.  C.  A.  752,  arising  under  the  Wisconsin  Act,  the  court 
said:  "The  compensation  act  requires  the  employer  to 
furnish  a  physician  and  makes  him  liable  for  the  value  of 
the  physician's  services  for  not  to  exceed  ninety  days,  Sec- 
tion 2394-9  subd.  1.  This,  we  think,  implies  liability  for 
any  aggravation 'of  the  injury  caused  by  the  negligence  of 
the  physician  treating  the  employee  during  such  time. 
Whether  the  employer  would  be  liable  for  malpractice  after 
the  expiration  of  ninety  days  is  not  decided.  The  negligent 
treatment  here  is  alleged  to  have  begun  about  two  weeks 
after  the  accident." 

In  Ross  v.  Erickson  Const.  Co.,  89  Wash.  634,  155  Pac. 
153,  11  N.  C.  C.  A.  (note)  757,  the  Washington  court  held 
that  an  injured  employee  had  no  right  of  action  for  an  in- 
jury caused  by  malpractice  of  the  attending  physician. 
"Counsel  reason  from  the  wrong  premise.  The  resultant 
injury  or  'aggravation/  to  use  the  words  of  the  statute,  is 
not  an  independent  injury.  It  is  proximate  to  the  original 
hurt  and  is  measured  as  such.  Surgical  treatment  is  an 
incident  to  every  case  of  injury  or  accident  and  is  covered 


TREATMENT  OF  INJURIES  243 

as  part  of  the  subject  treated.  .  .  .  When  a  workman 
is  hurt  and  removed  to  a  hospital,  or  is  put  under  the  care 
of  a  surgeon,  he  is  still,  within  every  intendment  of  the  law, 
in  the  course  of  his  employment  and  a  charge  upon  industry, 
and  so  continues  as  long  as  his  disability  continues.  The 
law  is  grounded  upon  the  theory  of  insurance  against  the 
consequence  of  accidents.  The  question  is  not  whether  an 
injured  workman  can  recover  against  any  particular  person, 
but  rather:  Is  his  condition  so  directly  or  proximately 
attributable  to  his  employment  as  to  invoke  the  benevolent 
design  of  the  State?" 

In  Salvatore  v.  New  England  Casualty  Co.,  2  Cal.  Ind. 
Ace.  Comm.  Dec.  355,  11  N.  C.  C.  A.  (note)  760,  the  Cali- 
fornia commision  said :  "An  industry  is  liable  for  all  legiti- 
mate consequences  following  an  accident,  among  which 
consequences  affecting  the  extent  of  disability  is  the  possi- 
bility of  an  error  of  judgment  or  unskillfulness  on  the  part 
of  any  attending  physician,  whether  called  in  by  the  employ- 
er or  the  employee.  While  the  employer,  to  avoid  the  in- 
crease of  disability  by  unskillful  treatment  by  other  physi- 
cians, may  offer  his  own  physician,  the  only  penalty  pro- 
vided for  refusal  of  an  employee  to  accept  such  treatment  is 
the  fact  that  the  employee  thereby  forfeits  the  right  to  have 
his  medical  bills  paid  by  the  employer.  No  other  loss  of 
benefits  is  provided  to  reinforce  this  provision,  unless  the 
physician  be  not  licensed  to  practice  or  be  guilty  of  such 
gross  ignorance  or  carelessness  that  the  injured  employee 
can  be  said  to  be  guilty  of  unreasonable  refusal  to  submit 
to  medical  treatment  in  engaging  him  in  preference  to  other 
treatment  offered." 

It  has  been  held  in  California  in  the  case  of  Stockwell 
v.  Waymire,  1  Cal.  Ind.  Ace.  Comm.  Dec.  2,  6  N.  C.  C.  A. 
(note)  624,  that  "If  the  treatment  was  unfortunate  and  the 
selection  of  a  physician  not  wisely  made,  the  fault  is  prop- 
erly chargeable  to  the  employer,  who  was  present  at  the  time 
of  the  accident,  who  had  opportunity  to  designate  what 
physician  the  injured  employee  should  go  to  to  be  attended 


244  MANUAL  OF  COMPENSATION  LAW 

to,  who  contented  himself  by  merely  saying  that  the  injured 
employee  ought  to  go  and  see  a  doctor." 

For  further  consideration  of  these  questions,  see  6  N.  C. 
C.  A.    (note)    624-629,  11  N.  C.  C.  A.  752-762. 


CHAPTER  VIII 

NOTICES  OF  AND  CLAIMS  FOR  INJURIES 

Section. 

198.  Employee,  or  some  one  for  him,  must  give  notice  of  accident. 

199.  Form  of  notice  or  claim. 

200.  Who  may  make  claim. 

201.  When  the  manner  of  giving  notice  is  sufficient. 

202.  When  the  employer  has  "knowledge  of  the  injury." 

203.  Meaning  of  "mistake  or  other  reasonable  cause." 

204.  When  an  employer  is  "mislead  to  his  injury." 

205.  When  the  employer  is  not  prejudiced. 

206.  Limitation  of  proceedings  for  compensation. 

§  198.  Employee,  or  Some  One  for  Him,  Must  Give  Notice 
of  Accident. 

The  acts  are  quite  uniform  on  the  question  of  what 
notice  of  injury  and  claim  is  to  be  given  by  the  employee. 
Generally,  it  may  be  said  that  the  employee  or  some  one  for 
him  must  give  notice  to  the  employer  as  soon  as  practicable 
after  the  happening  of  the  accident.  The  employee  has  a 
reasonable  time  to  give  this  notice  under  all  the  facts  and 
circumstances  of  his  particular  case,  but  must  do  so  within 
the  time  limit  provided  by  the  act,  after  which  claims  for 
compensation  are  barred.  The  decisions  on  the  meaning  of 
the  phraseology,  which  is  most  commonly  used,  in  the  pro- 
visions of  the  acts  on  this  subject,  are  treated  in  the  follow- 
ing sections.  The  purpose  of  requiring  notice  is  to  give 
the  employer  the  opportunity  for  investigation  of  the  facts 
of  the  accident  to  learn  whether  or  not  it  is  covered  by  the 
act  and  to  provide  the  necessary  medical  or  surgical  atten- 
tion so  as  to  reduce  the  disability. 


246  MANUAL  OF  COMPENSATION  LAW 

§  199.  Form  of  Notice  or  Claim. 

Most  of  the  acts  set  out  specifically  what  must  be  stated 
in  a  notice  of  accident  or  injury.  It  is  usually  provided  that 
the  notice  shall  contain  the  name  and  address  of  the 
employee  and  shall  state  in  ordinary  language  the  time, 
place  of  occurrence,  nature  and  cause  of  the  accident.  The 
nature  and  extent  of  the  injury  must  be  set  out,  giving  as 
definite  information  as  the  circumstances  permit.  The 
nature  of  the  work  in  which  the  injured  employee  was 
engaged  at  the  time  of  the  accident  must  also  be  stated  and 
the  names  of  witnesses  to  the  accident  must  be  given. 

The  acts  also  usually  provide  how  claim  for  compensa- 
tion shall  be  made.  But,  unless  the  act  says  that  claims 
cannot  be  made  except  in  the  manner  provided  by  them,  any 
form  of  claim  which  is  in  writing  and  signed  by  the  claim- 
ant and  presents  a  reasonably  intelligible  demand  for  com- 
pensation under  the  terms  of  the  act  would  protect  the 
rights  of  the  claimant.  In  order  to  fully  protect  the  claim- 
ant notice  should  be  given  in  each  case  as  provided  by 
the  act. 

§  200.  Who  May  Make  Claim. 

Section  33  of  the  Kentucky  Act  provides  that  "such  no- 
tice and  such  claim  may  be  given  or  made  by  any  person 
claiming  to  be  entitled  to  compensation  or  by  some  one  in 
his  behalf."  A  provision  similar  to  this  is  found  in  many 
of  the  acts  of  other  States.  Any  person  who  is  entitled  to 
receive  compensation  may  generally  either  give  notice  or 
make  claim,  such  as  the  injured  man,  his  dependents,  per- 
sonal representative,  administrator,  guardian,  next  friend, 
committee  or  trustee.  "Some  person  in  his  behalf"  probably 
means  a  person  who  gives  notice  or  makes  claim  at  the 
specific  request  of  and  in  behalf  of  some  person  claiming 
to  be  entitled  to  compensation  and  who  for  some  sufficient 
reason  is  unable  to  make  claim  or  give  notice  directly. 
While  the  words  used  in  compensation  acts  are  generally 
liberally  construed,  it  was  probably  not  intended  to  allow 


NOTICES  OF  AND  CLAIMS  FOR  INJURIES  247 

any  person  to  make  claim  or  give  notice  unless  they  either 
had  a  direct  legal  connection  with  a  beneficiary  or  were 
possible  beneficiaries  of  the  act  themselves. 

In  McFarland  v.  Central  R.  R.  Co.  of  N.  J.,  84  N.  J.  L. 
435,  87  Atl.  144,  4  N.  C.  C.  A.  592,  the  court  said:  "By 
whatever  name  the  proceeding  may  be  called  it  may  prop- 
erly be  set  on  foot  by  any  person  to  whom,  under  the  nine- 
teenth section  of  the  act,  payment  is  to  be  made,  i.  e.,  pay- 
ment for  the  purposes  of  distribution." 

It  has  been  held  that  a  father  may  institute  proceedings 
where  an  unmarried  son  has  been  killed.  Reimers  v.  Proc- 
tor Pub.  Co.,  85  N.  J.  L.  441,  89  Atl.  931,  4  N.  C.  C.  A.  738, 
L.  R.  A.  1916A  (note)  271,  and  also  that  the  claim  need 
not  be  made  for  a  definite  sum ;  Thompson  v.  Goold,  3  B.  W. 
C.  C.  392,  L.  R.  A.  1916A  (note)  85. 

In  Matwiczuk  v.  American  Car  &  Foundry  Co.,  155  N. 
W.  412  (Mich.),  the  court  said: 

"What  was  done  gave  the  employer  every  opportunity  to 
investigate  the  accident,  and  knowledge  of  all  material 
things  relating  thereto,  as  fully  as  though  an  application 
had  been  made  in  a  formal  way  by  the  widow  upon  the 
day  when  the  letter  was  written.  The  next  day  after  the 
injury  the  employer  was  notified  of  it,  the  result  of  it,  the 
time  and  place  and  cause  of  its  happening,  and  of  the  per- 
sons who  were  dependent.  This  notice  was  given,  not  by  an 
outsider,  but  through  the  agency  of  the  brother-in-law  of 
the  deceased,  the  brother  of  the  widow.  What  was  done 
was  notice  of  a  claim  by  the  deceased's  dependents,  made  by 
a  person  in  their  behalf.  We  think  it  too  technical  to  say 
that  a  notice  and  claim,  made  within  twenty-four  hours 
after  the  accident,  caused  to  be  given,  as  in  this  case,  in 
behalf  of  the  widow,  who  could  not  make  the  claim  her- 
self because  of  the  distance  from  where  she  lived,  which 
action  was  ratified  by  her  on  being  advised  of  the  situation, 
must  fail  because  the  ratification  did  not  reach  this  country 
within  six  months  from  the  time  of  the  accident.  To  so 
hold  would  not  be  according  to  the  letter  or  the  spirit  of 


248  MANUAL  OF  COMPENSATION  LAW 

the  Employers'  Liability  Act.  It  is  clear  that  what  was  done 
gave  the  employer  notice  of  the  injury,  thus  affording  an 
opportunity  for  a  full  investigation.  It  also  gave  notice  of 
who  were  dependents.  We  think  it  is  also  clear  that  the 
company  was  informed  that  the  brother-in-law,  by  employ- 
ing the  attorney  who  wrote  the  letter  giving  this  informa- 
tion, was  seeking  to  protect  the  interests  of  the  widow  and 
minor  children,  who  were  in  Poland,  and  the  inference  fol- 
lows almost  as  of  course  ,that  a  claim  was  urged  in  their 
behalf,  growing  out  of  the  death  of  the  husband  and  father. 
The  language  of  the  statute  indicates  that  the  notice  and 
claim  might  be  in  ordinary  language,  and  might  be  signed 
by  dependents  'or  by  a  person  in  their  behalf,'  and  what 
would  be  more  natural  than  to  assume  that  a  brother  of 
the  widow  in  her  absence  would  act  for  her?" 

§  201.  When  the  Manner  of  Giving  Notice  Is  Sufficient. 

Generally,  if  the  employer  is  a  partnership,  service  on 
one  of  the  partners  is  sufficient;  if  a  corporation,  on  any 
agent  upon  whom  process  may  be  served  or  upon  any  officer 
or  agent  in  charge  at  the  place  where  the  accident  occurred. 
In  England  it  was  held  that  notice  given  to  an  inspector 
and  timekeeper  was  not  sufficient,  Jackson  v.  Vickers,  5  B. 
W.  C.  C.  432,  L.  R.  A.  1916A  (note)  85.  Nor  was  it  suffi- 
cient to  give  the  notice  to  the  foreman  of  a  department  of 
a  large  factory.  Pimm  v.  Clement  Talbot,  7  B.  W.  C.  C. 
565,  Plumley  v.  Ewart  &  Son,  8  B.  W.  C.  C.  464,  L.  R.  A, 
1916A  (note)  85. 

The  following  notices  to  agents  or  officers  of  employers 
have  been  held  sufficient  by  courts  and  industrial  boards, 
although  not  given  in  the  formal  manner  provided  by  the 
act:  A  conversation  concerning  the  injury  with  one  of  the 
officers  of  the  employer,  Kelly  v.  Consumers  Co.,  111.  Ind. 
Bd.  Dec.,  July  30,  1914;  where  the  secretary  saw  the  injured 
man  once  a  week  for  a  month  following  the  accident,  Stin- 
ton  v.  Brandon  Gas  Co.,  Ltd.,  W.  C.  Rep.  132  (Eng.) ; 
where  a  mine  official  entered  the  particulars  of  an  accident 


NOTICES  OF  AND   CLAIMS  FOR  INJURIES  249 

in  a  book  in  the  presence  of  the  injured  man,  Stevens  v. 
Insoles,  Ltd.,  W.  C.  Rep.  Ill  (Eng.)  ;  notice  to  a  manager  a 
half  hour  after  the  accident,  Ralph  v.  Mitchell,  W.  C.  &  Ins. 
Rep.  501  (Eng.)  ;  telephone  message  by  a  guardian  to  a 
cashier,  Striegel  v.  Am.  Radiator  Co.,  III.  Ind.  Bd.  Dec. 
May  6,  1915;  a  verbal  notice  to  a  foreman  which  would 
have  been  good  if  reduced  to  writing,  Hewitt  v.  Stanley 
Bros.,  Ltd.,  W.  C.  &  Ins.  Rep.  495  (Eng.). 

The  following  notices  have  been  held  insufficient:  A 
notice  given  by  the  employee's  mother  to  the  employer's 
bookkeeper,  Coltman  v.  Morrison  &  Mason,  Ltd.,  W.  C.  & 
Ins.  Rep.  43 ;  a  conversation  of  the  employee's  wife  with  the 
employer's  bookkeeper,  Eydman  v.  Premier  Accum.  Co., 
Ltd.,  W.  C.  Ins.  Rep.  82;  notice  to  one  who  was  a  kind  of 
foreman,  Jackson  v.  Vickers,  Ltd.,  W.  C.  Rep.  274;  to  the 
foreman  when  the  manager  was  on  the  floor  below,  Plumley 
v.  Ewart  &  Son,  Ltd.,  W.  C.  &  Ins.  Rep.  317;  notice  to  the 
ambulance  man  of  the  employer,  Coltman  v.  Morrison  & 
Mason,  Ltd.,  W.  C.  &  Ins.  Rep.  43.  See  further  note  in  9 
N.  C.  C.  A.  749-753,  where  most  of  the  above  cases  were 
discussed. 

The  notice  of  injury  and  claim  for  damages  made  within 
twenty-four  hours  of  .the  injury  through  an  attorney  em- 
ployed by  the  brother-in-law  of  the  deceased  for  the  depend- 
ent family  when  ratified  within  six  months  by  mailing  the 
ratification,  held  to  be  a  sufficient  compliance  with  the 
Michigan  Act  with  regard  to  notice.  Matwiczuk  v.  Ameri- 
can Car  &  Foundry  Co.,  155  N.  W.  412  (Mich.) 

The  Massachusetts  Workmen's  Compensation  Act  does 
not  require  an  injured  employee  to  state  in  his  claim  for 
loss  the  nature  of  the  compensation  demanded.  Lemieux  v. 
Cont.  Mutual  Liability  Ins.  Co.,  222  Mass.  346,  111  N.  E. 
782. 

§  202.  When  the  Employer  Has  "Knowledge  of  the  Injury." 

Some  of  the  acts  provide  that  "want  of  notice  or 
delay  in  giving  notice  shall  not  be  a  bar  to  proceedings 


250  MANUAL  OF  COMPENSATION  LAW 

under  this  act  if  it  be  shown  that  the  employer,  his  agent 
or  representative  had  knowledge  of  the  injury."  The  acts 
usually  call  for  written  and  signed  notice  from  the  employee 
to  the  employer  of  each  accident  for  which  the  employee 
desires  to  claim  compensation,  but  they  generally  provide, 
and  this  is  also  the  general  rule,  that  a  claim  for  compen- 
sation will  not  be  allowed  to  fail  merely  because  the  em- 
ployee failed  .to  give  or  delayed  in  giving  written  notice, 
provided  only  that  the  employer  or  his  agent  or  represen- 
tative had  actual  knowledge  of  the  injury.  The  actual 
knowledge  must  be  had  either  by  the  employer  himself  or 
by  some  proper  agent  or  representative  of  the  employer. 
In  re  McLean,  223  Mass.  342,  111  N.  E.  783;  State  v.  Dist. 
Ct.  (Minn.),  156  N.  W.  278. 

Under  such  a  provision  in  Minnesota  it  was  held  that 
when  the  employer  admitted  having  full  knowledge  of  the 
injury  formal  notice  thereof  was  unnecessary.  State  Ex 
rel  Duluth  Diamond  Drilling  Co.  v.  Dist.  Ct.,  129  Minn.  423, 
152  N.  W.  838,  9  N.  C.  C.  A.  1119.  It  has  also  been  held 
that  the  employer  may  by  his  conduct  waive  the  failure  of 
the  plaintiff  to  make  a  claim  within  the  time  specified  in 
the  statute  or  at  any  time  prior  to  the  time  when  the  notice 
was  given.  Roberts  v.  Charles  Wolff  Packing  Co.,  95  Kan. 
723,  149  Pac.  413,  L.  R.  A.  1916A  (note)  245. 

In  Allen  v.  City  of  Millville,  87  N.  J.  L.  356,  95  Atl.  130, 
9  N.  C.  C.  A.  749,  the  New  Jersey  court  said :  "A  private  or 
a  municipal  corporation,  as  a  legal  entity,  can  not  of  itself 
have  knowledge.  If  it  can  be  said  to  have  knowledge  at 
all,  that  must  be  the  imputed  knowledge  of  some  corporate 
agent.  The  act  would  fail  of  its  purpose  unless  it  were 
applicable  to  corporate,  as  well  as  to  individual,  employers. 
We  think,  therefore,  that  the  knowledge  of  the  proper  cor- 
porate agent  must  be  regarded  as,  in  legal  effect,  the  knowl- 
edge of  the  corporation.  If  we  are  right  in  this  construc- 
tion of  the  statute,  there  can  be  no  doubt  that  the  knowledge 
of  Mr.  Kates  was  the  knowledge  of  the  city,  since  he  was  the 


NOTICES  OF  AND  CLAIMS  FOR  INJURIES  251 

commissioner  actually  in  charge  of  the  work  on  which  Allen 
was  employed." 

It  has  also  been  held  that  the  knowledge  of  the  Mayor 
of  a  city  concerning  an  injury  was  the  knowledge  of  the 
city.  State  Ex  rel  Northfield  v.  Dist.  Ct.,  131  Minn.  352, 
155  N.  W.  103. 

As  to  notice  over  the  telephone  the  Illinois  Industrial 
Board,  in  Cutoria  v.  Swieberg,  9  N.  C.  C.  A.  1125,  said: 
"The  contention  that  the  conversation  over  the  telephone  is 
not  admissible  for  .the  purpose  of  proving  notice,  is  not 
tenable.  Instances  may  arise  where  a  conversation  over  a 
telephone  would  not  be  admissible,  but  that  is  not  this  case. 
It  is  not  the  conversation,  or  the  substance,  that  is  sought 
to  be  introduced.  It  is  the  mere  fact  of  notice  over  the 
telephone,  and  there  can  be  no  question  about  its  compe- 
tency." 

Under  the  Massachusetts  Act,  which  provides  that  want 
of  notice  shall  not  be  a  bar  if  the  employer  had  knowledge  of 
the  injury,  an  injured  employee  gave  notice  to  his  foreman 
and  the  employer  filed  a  report  of  the  injury.  It  was  held 
that  the  proceedings  of  the  employee  were  not  barred  be- 
cause of  his  failure  to  notify  the  employer.  In  re  McClain, 
111  N.  E.  783,  223  Mass.  342. 

Under  the  Massachusetts  Act  a  foreman  who  knew  of  an 
accident  was  held  to  be  the  agent  of  the  employer,  so  that 
the  employer  had  constructive  knowledge  of  the  accident. 
In  re  Bloom,  111  N.  E.  45,  222  Mass.  434. 

See  further  note,  9  N.  C.  C.  A.  1119-1126  and  9  N.  C. 
C.  A.  749-753. 

§  203.  Meaning  of  "Mistake  or  Other  Reasonable  Cause." 

•Some  of  the  acts  provide  that  want  of  notice  or  delay  in 
giving  it  shall  not  be  a  bar  to  proceedings  if  it  be  shown 
"that  such  delay  or  failure  to  give  notice  was  occasioned 
by  mistake  or  other  reasonable  cause."  The  meaning  of 
these  words  is  a  question  of  law,  but  whether  or  not  there 
was  a  mistake  or  reasonable  cause  is  a  question  of  fact 


252  MANUAL  OF  COMPENSATION  LAW 

which  is  not  reviewable  except  on  the  ground  tHat  the  con- 
clusion reached  was  against  the  weight  of  the  evidence. 
These  same  words  are  used  in  the  English  Act. 

In  the  case  of  Flood  v.  Smith  &  Leishman,  1  Scot.  L.  T. 
340,  9  N.  C.  C.  A.  1027,  Flood  received  a  slight  abrasion 
on  one  of  his  fingers  on  December  2,  1913.  He  gave  verbal 
notice  to  his  foreman  two  days  later  and  the  foreman  failed 
to  report  the  fact.  Formal  notice  was  not  given  until 
April  22,  1914.  It  was  found  by  the  arbitrator  that  notice 
was  not  given  "as  soon  as  practicable"  and  that  the  employer 
was  prejudiced  by  the  failure  to  give  it,  but  it  was  held  that 
this  want  of  notice  was  caused  by  "mistake  or  other  reason- 
able cause."  This  finding  was  based  on  the  fact  that  the 
employee  was  illiterate,  not  being  able,  to  read  or  write, 
and  that  neither  at  the  time  of  the  accident  nor  for  a  consid- 
erable time  thereafter  did  he  regard  the  injury  as  serious. 
It  was  only  when  he  was  sent  to  an  infirmary  on  his  doc- 
tor's advice  that  he  considered  the  injury  serious  enough  to 
claim  compensation.  The  fact  that  he  had  told  the  foreman 
and  worked  with  his  finger  bandaged  was  found  sufficient 
to  cause  him  to  believe  that  the  employer  knew  of  his  injury. 
The  court  said :  "The  finding  that  the  man  had  good  ex- 
cuse, or  labored  under  a  mistake,  in  failing  to  give  notice 
because  he  did  not  know  how  serious  his  injuries  were,  was 
challenged  by  the  counsel  for  the  appellants  in  law,  and  it 
was  argued  that  this  was  not  sufficient  to  entitle  the  arbi- 
trator to  come  to  the  conclusion  that  there  was  a  mistake, 
or  that  there  was  a  reasonable  cause  for  failure  to  give 
notice.  I  am  of  opinion  that  it  was  sufficient,  and  I  do  not 
well  see  how  the  arbitrator  could  have  come  to  any  other 
conclusion,  facing  him  the  cases  of  Rankine  v:  Alloa  Coal 
Co.,  Ltd.,  (6  Eraser  375,  41  S.  L.  R.  306,  11  S.  L.  T.  670) , 
and  of  Brown  v.  Lochgelly  Iron  &  Coal  Co.,  Lfd.  ( [1907],  S. 
C.  198,  44  S.  L.  R.  180,  14  S.  L.  T.  545).  The  former  of 
these  cases  seems  to  me  to  have  decided  this  very  question. 
Lord  Adam  puts  it  in  a  sentence  thus:  'He  thought  his 
injury  was  not  as  serious  as  it  was  and  I  think  that  was 


NOTICES  OF  AND  CLAIMS  FOR  INJURIES  253 

a  reasonable  cause  for  not  giving  notice.'  And  although,  no 
doubt,  Lord  Adam  himself  and  the  other  two  judges  who 
agreed  with  him  put  the  excuse  upon  the  ground  of  mis- 
take, it  is  by  no  means  unreasonable  to  hold  that  it  might 
not  only  be  a  mistake,  but  might  be  a  reasonable  cause  for 
failure  to  give  notice,  that  the  man  did  not  realize  the  seri- 
ousness of  his  injuries  at  the  time,  and  did  not  for  some 
considerable  time  subsequent  to  the  date  of  the  accident 
realize  how  serious  his  injuries  were.  .  .  .  And  for 
my  part,  whilst  I  do  not  differ  from  the  view  that  it  may  be 
regarded  as  a  mistake,  I  prefer  to  base  my  judgment  upon 
the  ground  that  it  was  a  reasonable  cause.  .  .  .  That  a 
man  who  is  laboring  under  an  error  as  to  the  seriousness  of 
the  injury  which  he  has  suffered  has  reasonable  cause  for 
not  giving  the  notice  enjoined  by  the  statute  is  a  proposition 
I  am  prepared  to  affirm.  Whether  he  is  under  such  an  error 
or  not  is,  of  course,  a  question  exclusively  for  the  arbitrator 
to  determine."  Lord  Johnston,  while  concurring  with  the 
court  in  the  conclusion  reached,  said:  "I  think  that  the 
words  in  question  are  not  to  be  read  loosely,  as  they  seem  to 
me  to  have  been  read  by  the  court  in  Rankine  v.  Alloa 
Coal  Co.,  Ltd.  (6  Fraser  375,  41  S.  L.  R.  306,  11  S.  L.  T. 
670),  but  to  be  read  somewhat  strictly,  inasmuch  as  they 
introduce  an  exemption  from  a  penalty,  presumably  prop- 
erly imposed,  upon  the  workman  for  not  giving  his  notice 
in  good  time.  I  think  that  it  is  a  question  whether  the 
terms  'mistake'  and  'other  reasonable  cause'  are  to  be  run 
into  one  another  and  treated  as  if  it  did  not  matter  which, 
and  as  if  it  did  not  matter  whether  you  can  put  your  finger 
upon  a  real  mistake  or  a  real  and  intelligible  other  cause  of 
a  reasonable  nature  I  question  whether  they  do  not  require, 
particularly  when  read  along  with  'absence  from  the  United 
Kingdom,'  to  be  more  strictly  applied  than  they  have  been 
in  the  two  Scottish  cases." 

In  Lynch  v.  Marquis  of  Lansdowne,  48  Ir.  L.  T.  89, 
9  N.  C.  C.  A.  903,  it  was  said :  "Mere  payment  of  wages  or 
part  wages,  by  an  employer  to  an  injured  workman  after 


254  MANUAL  OF  COMPENSATION  LAW 

the  latter  has  been  injured  is,  by  itself,  a  neutral  fact,  and 
is  not  sufficient  to  enable  the  court  to  draw  the  inference 
that  the  workman  had  'reasonable  cause'  within  the  meaning 
of  the  statute  for  not  making  claim  within  six  months  of 
the  date  of  the  accident." 

In  Luckie  v.  Merry,  2  K.  B.  83,  9  N.  C.  C.  A.  895,  Lord 
Cozens-Hardy,  M.  R.,  said:  "This  raises  an  important 
point;  it  is  this:  An  old  servant  meets  with  an  accident 
in  the  course  of  his  employment  to  the  knowledge  of  his 
master,  who  treats  him  well  and  tells  him  'notwithstanding 
you  are  not  able  to  do  your  ordinary  work,  go  and  potter 
about  in  the  works.'  He  remains  there,  and,  after  a  time,  he 
does  his  own  work  again  fully,  except  there  is  some  portion 
of  the  grooming  which  he  is  not  able  to  manage,  but,  speak- 
ing substantially,  during  more  than  six  months  he  remains 
in  the  employment  of  his  master  receiving  his  old  wages, 
and  for  part  of  the  time  doing  his  old  work.  Is  that  a 
reasonable  cause  for  not  making  claim  which  need  not  be  a 
written  claim?  'Reasonable  cause'  of  course  must  have  ref- 
erence to  the  workman  himself.  ...  I  should  say  with- 
out hesitation,  looking,  as  I  am  entitled  to  do,  to  the  facts 
that  this  was  an  old  servant,  and  his  master  when  the  acci- 
dent was  explained  to  him  gave  him  the  direction  above 
quoted,  that  there  was  reasonable  cause  from  the  man's 
point  of  view  for  not  giving  a  notice  such  as  this :  'I  have 
no  claim  now  because  you  are  paying  me  my  full  wages, 
but,  mind  you,  there  may  be  in  the  future  a  contingent  claim 
which  I  shall  have  against  you  for  compensation.'  That 
would  be  a  sufficient  notice.  It  would  be  narrowing  the 
construction  of  the  words  'reasonable  cause'  if  we  were  to 
say  in  this  case,  having  regard  to  all  the  circumstances,  that 
there  was  not  a  reasonable  cause." 

The  Massachusetts  Act  provides  that  failure  to  make  a 
claim  shall  not  bar  proceedings  if  occasioned  by  mistake  or 
ignorance  by  the  employee  of  the  act's  requirements.  The 
evidence  was  held  insufficient  to  sustain  the  finding  that 
the  employee  failed  to  file  a  claim  for  compensation  with 


NOTICES  OF  AND  CLAIMS  FOR  INJURIES  255 

the  board  because  of  a  mistake.    In  re  McClain,  111  N.  E. 
783,  223  Mass.  342. 

For  exhaustive  annotations  upon  this  point,  see  L.  R.  A. 
1916A,  89-93,  9  N.  C.  C.  A.  (note)  1027-1045,  9  N.  C.  C.  A. 
(note)  895-916.  See  also  Eke  v.  Hartdyke,  3  N.  C.  C. 
A.  230. 

§  204.  When  An  Employer  Is  "Mislead  to  His  Injury." 

Usually  if  a  notice  is  not  given  by  the  employee  "as 
soon  as  practicable"  after  an  accident  and  the  employer 
is  prejudiced  by  the  delay  or  "mislead  to  his  injury,"  com- 
pensation will  not  be  allowed.  Provisions  very  similar  to 
those  now  being  discussed  are  found  in  many  American 
acts  and  in  the  English  Act,  where  it  is  said,  "As  soon 
as  practicable"  is  a  question  of  fact,  and  it  has  been  held  in 
the  Court  of  Appeals  that  if  an  injury  is  apparently  trifling, 
notice  need  not  be  given  till  it  turns  out  to  be  serious..  See 
Snelling  v.  Norton  Hill  Colliery  Co.  ( [1913]  W.  C.  &  Ins. 
Rep.  497),  9  N.  C.  C.  A.  974. 

In  Hayward  v.  West  Leigh  Colliery,  Ltd.  [1915],  A.  C. 
540,  W.  C.  &  Ins.  Rep.  233,  9  N.  C.  C.  A.  966,  Hayward  suf- 
fered a  slight  bruise  and  abrasion  of  the  skin  by  striking 
his  knee  while  at  work  on  April  1,  1913.  He  worked  the 
next  day,  was  off  a  day  and  worked  the  two  days  following, 
his  knee  paining  him  and  becoming  more  swollen  all  the 
time.  On  April  5  he  called  a  doctor.  On  April  8  a  fellow 
employee  told  a  fireman  who  worked  at  the  mine  that  Hay- 
ward  was  laying  off  on  account  of  an  injury  to  his  knee 
received  at  the  mine.  On  April  9  he  was  taken  to  an  in- 
firmary and  died  the  following  day  of  blood  poisoning. 
Notice  in  writing  was  given  to  the  employers  by  the  wife 
on  April  24,  1913,  and  this  was  the  first  actual  notice  they 
had  received.  The  question  of  whether  the  notice  to  the 
fireman  constituted  actual  knowledge  of  the  injury  was 
not  raised.  The  case  was  appealed  to  the  House  of 
Lords  and  the  finding  of  the  arbitrator  that  under  these 
facts,  the  employer  was  not  prejudiced  was  upheld.  It  was 


256  MANUAL  OF  COMPENSATION  LAW 

admitted  that  the  provisions  of  the  act  as  to  notice  were 
not  complied  with.  It  was  argued  that  by  failure  to  give 
notice  the  employer  was  prevented  from  giving  the  man  the 
best  medical  attention  immediately  and  that  this  might  have 
avoided  the  result.  Lord  Sumner  said:  "Now  the  finding 
which  is  to  be  arrived  at  is,  of  course,  a  finding  upon  all  of 
the  facts  which  are  proved,  and  I  do  not  think  that  those 
facts  include  the  mere  circumstance  that  the  defendant  does 
not  give  further  evidence,  or  call  certain  witnesses  whose 
absence  is  not  accounted  for.  The  arbitrator  has  to  take 
the  facts  as  they  have  been  proved  before  him,  and,  if  it  be 
a  case  in  which  facts  are  proved  on  bo.th  sides,  he  has  to 
take  the  totality  of  the  facts  as  he  finds  them  and  then  come 
to  his  conclusion.  The  question  for  the  court  of  appeal  upon 
that  is  whether  the  totality  of  such  facts  contains  evidence 
upon  which  he  could,  without  error  in  law,  come  to  a  find- 
ing of  fact,  such  as  he  arrived  at,  at  all."  Lord  Parmoor 
said,  speaking  of  the  wording  of  the  act:  "In  my  opinion 
it  is  very  necessary  to  regard  the  words  themselves,  and 
the  words  are  these :  The  want  of  or  any  defect  or  inaccu- 
racy in  such  notice  shall  not  be  a  bar  to  the  maintenance 
of  such  proceedings  if  it  is  found  in  the  proceedings  for 
settling  the  claim  that  the  employer  is  not,  or  would  not,  if 
a  notice  or  an  amended  notice  were  then  given  and  the 
hearing  postponed,  be  prejudiced  in  his  defense  by  the  want, 
defect  or  inaccuracy.'  Now  it  has  been  found  in  this  case 
in  the  proceedings  for  settling  the  claim  that  the  employer 
has  not  been  prejudiced  in  his  defense  by  want  or  defect  or 
in  accuracy.  Therefore,  I  apprehend  the  only  question  to  be 
whether  in  coming  to  that  conclusion,  there  is  any  error  in 
law  on  which  the  county  court  judge  can  be  put  right  in 
the  court  of  appeal  or  in  this  house.  In  my  opinion  there 
is  no  error  in  law  of  that  kind." 

In  Ford  v.  Gaiety  Theater,  Ltd.,  7  B.  W.  C.  C.  197,  9  N. 
C.  C.  A.  967,  a  stage  hand  got  a  splinter  in  his  hand  on 
February  21  or  24,  which  he  picked  out  with  a  knife.  He 
died  of  blood  poisoning  on  March  5,  but  no  notice  was  given 


NOTICES  OF  AND  CLAIMS  FOR  INJURIES  257 

until  March  19.  A  fellow  employee  could  not  recall  on 
which  arm  the  injury  was  sustained,  and  it  was  too  late  to 
discover  this  fact,  which  was  important  because  there  was  a 
question  whether  the  poisoning  was  due  to  the  splinter  or 
another  source.  It  was  held  that  the  employer  was  preju- 
diced by  the  delay. 

It  was  likewise  held  where,  after  an  injury  to  the  eye 
on  June  26,  1914,  which  was  so  serious  as  to  impair  the 
sight,  no  notice  was  given  until  August  5,  1914.  Miller  v. 
Richardson,  W.  C.  and  Ins.  Rep.  381,  9  N.  C.  C.  A.  969. 

In  Snelling  v.  Norton  Hill  Coal  Co.,  W.  C.  and  Ins.  Rep. 
497,  9  N.  C.  C.  A.  970,  an  employee  received  an  abrasion 
of  the  skin  on  November  7,  1912,  while  loading  coal  on  a 
wagon.  No  one  saw  the  accident  and  no  formal  notice  was 
given  until  November  21,  1912,  when  he  claimed  disability 
from  blood  poisoning.  The  judge  said:  "Notice  of  the  ac- 
cident must  be  given  at  the  earliest  time  practicable.  To 
my  mind,  it  certainly  was  practicable  for  him  to  have  given 
notice  when  he  felt  the  pain  and  noticed  the  swelling  on  the 
Saturday  or  Sunday  (following  the  accident).  The  notice 
was  not  given  until  November  21,  and  it  therefore  does  not 
come  within  the  meaning  of  the  term  'as  soon  as  practic- 
able.' " 

Under  somewhat  similar  facts  the  same  was  held  in 
Plumley  v.  Ewart  &  Son,  Ltd.,  W.  C.  &  Ins.  Rep.,  317,  9 
N.  C.  C.  A.  971,  and  in  Unger  v.  Howell,  W.  C.  &  Ins.  Rep. 
58,  7  B.  W.  C.  C.  36,  9  N.  C.  C.  A  972,  and  in  Ing  v.  Higgs, 
7  B.  W.  C.  C.  65,  9  N.  C.  C.  A.  973. 

The  Massachusetts  Act  provides  that  "notice  must  be 
given  as  soon  as  practicable  after  the  happening  thereof" 
A  claim  for  compensation  filed  four  months  after  an  acci- 
dent was  too  late  to  constitute  written  notice  of  the  injury, 
within  the  meaning  of  the  Massachusetts  Act.  In  re  Bloom, 
222  Mass.  434,  111  N.  E.  45. 

In  all  of  the  above  cases  it  was  held  that  the  burden 
was  on  the  employee  to  show  that  the  employer  was  not 
prejudiced.  In  Nichols  v.  Britton  Ferry  Urban  Dis.  Council 


258  MANUAL  OF  COMPENSATION  LAW 

(1915),  W.  C.  &  Ins.  Rep.,  14,  9  N.  C.  C.  A.  974,  the  court 
said:  "The  onus  is  on  the  applicant  to  show  that  the  re- 
spondent was  not  prejudiced."  See  also  L.  R.  A.  1916A  88, 
note. 

For  note  discussing  the  above  cases  and  others  in  point, 
see  9  N.  C.  C.  A.  966-990,  and  L.  R.  A.  1916A  86-93. 

§  205.  When  the  Employer  Is  Not  Prejudiced. 

It  has  been  held  that  the  employer  is  not  prejudiced 
where  there  is  no  evidence  that  if  the  notice  were  given 
immediately  after  the  accident,  they  would  have  been  in 
any  better  position  than  they  actually  were  at  the  time 
when  notice  was  given.  Howard  v.  Rowsell,  7  B.  W.  C.  C. 
552,  L.  R.  A.  1916A  (note)  87.  Likewise,  where  the  work- 
man consulted  the  employer's  doctor  two  or  three  days 
after  the  accident.  Bruno  v.  International  Coal  &  Coke  Co. 
(Alberta),  7  B.  W.  C.  C.  1033,  L.  R.  A.  1916A  (note)  87. 

It  was  held  that  the  fact  that  the  employee  did  not  give 
notice  to  his  employer,  and  therefore  the  employer  could 
not  give  due  notice  to  his  insurance  company,  and  thereby 
lost  his  right  of  indemnity,  was  not  relevant  upon  the  ques- 
tion of  prejudice,  because  failure  to  give  notice  to  an  in- 
surance company  does  not  prejudice  the  employer  in  the  de- 
fense of  a  claim  by  the  employee.  Butt  v.  Gellyceidrim 
Colliery  Co.,  3  B.  W.  C.  C.  44,  L.  R.  A.  1916A  (note)  88. 

Where  there  was  a  failure  to  give  the  notice  of  acci- 
dent as  required  by  the  State  of  Wisconsin,  where  there 
was  no  intent  to  mislead,  and  where  the  employer  was,  in 
fact,  not  mislead,  compensation  was  held  to  be  properly 
awarded  to  the  widow.  City  of  Milwaukee  v.  Industrial 
Comm.,  160  Wis.  238,  151  N.  W.  247. 

An  employee  failed  to  give  formal  notice  of  an  injury 
within  ten  days  after  its  occurrence,  but  the  employer's 
foreman  knew  of  the  accident  and  had  sent  him  to  their 
physician.  It  was  held  that  the  failure  to  give  notice  was 
not  prejudicial,  and  therefore  not  a  bar.  to  recovery.  Ack- 
erson  v.  National  Zinc  Co.  96  Kan.  781, 153  Pac.  530. 


NOTICES  OF  AND  CLAIMS  FOR  INJURIES  259 

§  206.  Limitation  of  Proceedings  for  Compensation. 

A  limitation,  varying  from  six  months  to  two  years  in 
the  various  acts,  is  usually  placed  upon  the  right  to  make 
claim  for  compensation.  This  limitation  begins  to  run  with 
the  accident  or  injury.  But  it  is  held  in  California  that 
it  may  be  extended  by  payment  of  wages  or  compensation 
after  the  injury.  Limitations  in  such  a  case  begin  to  run 
from  the  last  payment.  Turner  v.  City  of  Santa  Cruz,  2 
Cal.  Ind.  Ace.  Comm.  Dec.  991.  But  the  contrary  was  held 
where  medical  expenses  only  were  paid.  Johnson  v.  Eng- 
strum  Co.,  2  Cal.  Ind.  Ace.  Comm.  Dec.  788.  Mere  ignorance 
that  the  statute  provides  for  a  limitation  on  claims  is  not 
an  excusable  mistake.  In  re  Fierro  223  Mass.  378,  111  N. 
E.  957. 

Construing  the  one  year  statute  of  limitations,  Ky.  Stat., 
§  2516,  the  court  in  the  case  of  Geneva  Cooperage  Co.  et  al. 
v.  Brown,  30  Ky.  L.  R.  272,  98  S.  W.  279,  held  that  in  com- 
puting the  time  within  which  the  action  must  be  com- 
menced, the  day  of  the  injury  must  be  included  and  if  the 
expiration  of  the  year  falls  on  Sunday,  that  fact  does  not 
authorize  the  bringing  of  an  action  on  the  following  day. 

In  Stoll  v.  Ocean  Shore  R.  Co.,  2  Cal.  Ind.  Ace.  Comm. 
Dec.,  81  (1915),  9  N.  C.  C.  A.  908,  under  a  six  months  limi- 
tation, an  employee  received  an  injury  to  the  eye  for  which 
compensation  had  been  paid  for  several  weeks  and  had 
been  terminated,  the  disability  having  been  thought  to  be 
ended  by  both  parties ;  but,  when  six  months  after  the  last 
payment  was  made,  a  cataract  had  developed  and  a 
claim  was  made,  the  California  Ind.  Ace.  Comm.  held 
that  since  six  months  had  elapsed  after  payment  of  com- 
pensation had  ceased  without  renewal  of  the  claim,  the 
claim  was  barred  by  limitation. 

Under  the  New  Jersey  act  a  petition  must  be  actually 
filed  with  the  clerk  of  the  Court  within  one  year  after  the 
accident.  It  is  not  sufficient  to  present  it  to  the  Judge. 
Hendrickson  v.  Public  Service  Railway  Co.,  94  Atl.  402,  87 
N.  J.  L.  366. 


260  MANUAL  OF  COMPENSATION  LAW 

Where  an  employee  brought  an  action  at  law  for  an  in- 
jury within  three  months  after  the  accident,  and  later  by 
an  amended  petition  asked  for  compensation,  it  was  held 
that  the  action  at  law,  though  irregular,  met  the  statutory 
requirement  that  a  claim  for  compensation  be  made  within 
three  months.  Ackerson  v.  Nat'l  Zinc  Co.,  153  Pac.  530, 
96  Kan.  781. 

An  employee  elected  to  prosecute  a  claim  before  the 
State  Board.  It  was  held  that  failure  to  push  this  claim 
was  not  a  bar  to  an  award  by  the  Board.  Bomgardner  v. 
Zilch,  3  Ohio  App.  181,  35  Ohio  Cir.  Ct.  R.  292. 


CHAPTER  IX 

DEFENSES  TO  COMPENSATION 

Section. 

207.  Defenses  of  non-electing  employer. 

208.  Defenses  of  electing  employer  against  non-electing  employee. 

209.  Defenses  of  electing  employer  against  electing  employee. 

210.  Relation  of  employer  and  employee  must  exist. 

211.  There  must  be  an  accident  or  injury. 

212.  Must  arise  out  of  and  in  the  course  of  employment. 

213.  Refusal  to  accept  employment  as  defense. 

214.  Refusal  to  allow  physical  examination. 

215.  Refusal    to    submit   to    surgical   operation   or   follow   medical 

advice. 

216.  Failure  to  give  notice  of  injury. 

217.  Limitations. 

218.  Willful  self-inflicted  injury  as  a  defense. 

219.  Willful  misconduct  as  a  defense. 

220.  A  reduction,  or  forfeiture  of  compensation   for  disobedience 

of  rules. 

221.  Willful  negligence  of  employee. 

222.  Intoxication  as  a  defense. 

223.  Malingering  as  a  defense. 

224.  Malingering  or  hysteria. 

225.  Burden  of  proof. 

§  207.  Defenses  of  Non-electing  Employer. 

The  employer  who  is  within  the  scope  of  a  workmen's 
compensation  act  but  does  not  elect  to  operate  under  it 
can  not  set  up  the  common  law  defenses,  of  contributory 
negligence,  assumed  risk  or  fellow  servant,  in  defense  of 
an  action  at  law.  See  §  62.  But  the  employer  still  has  the 
defense  that  he  was  not  guilty  of  any  negligence  in  pro- 
ducing the  injury.  Hunter  v.  Colfax  Consol.  Coal  Co.,  154 
N.  W.  1037— amended  157  N.  W.  145.  (Iowa)  11  N.  C.  C.  A. 
886.  Where  the  employer  is  not  covered  by  the  act  his  de- 
fenses are  the  same  as  they  were  before  its  passage. 


262  MANUAL  OF  COMPENSATION  LAW 

§  208.  Defenses  of  Electing  Employer  Against  Non-electing 
Employee. 

Where  the  employer  who  is  within  the  scope  of  the 
act  elects  to  operate  under  it  but  the  employee  rejects  the 
act,  the  employer  has  all  the  defenses  to  an  action  at  law 
which  were  allowed  him  before  the  act  was  passed. 

In  Greene  v.  Caldwell  et  al.,  170  Ky.  571,  186  S.  W.  648, 
12  N.  C.  C.  A.  520,  the  court  in  holding  the  Kentucky  act 
of  1916  to  be  constitutional  said: 

"It  is  true  that  under  section  76b  the  employee  who 
does  not  elect  to  accept  the  act  and  who  brings  an  action 
to  recover  damages  for  personal  injuries  sustained  by  the 
alleged  negligence  of  the  employer  who  has  accepted  its 
provisions,  may  be  met  with  the  defenses  that  he  was  guil- 
ty of  contributory  negligence,  or  that  the  injuries  com- 
plained of  were  caused  by  the  negligence  of  a  fellow  serv- 
ant, or  that  he  assumed  the  risk  of  the  accident  that  re- 
sulted in  his  injury.  But,  clearly,  the  fact  that  the  em- 
ployer may  rely  on  these  defenses  is  far  from  denying  to 
the  employee  the  right  to  recover  for  injuries  caused  by 
the  negligence  of  the  employer.  He  still  has  his  cause  of 
action  as  he  has  always  had,  and  the  employer  has  only  the 
right  to  rely  on  defenses  that  he  always  had  the  right  to 
rely  on,  although  it  should  be  said  that  the  common  law 
definition  of  these  defenses  has  been  greatly  modified  by 
court  opinions  and  that  they  do  not  now  excuse  the  em- 
ployer to  the  full  extent  they  formerly  did. 

To  what  extent  these  defenses  may  be  relied  on  by  the 
accepting  employer  to  defeat  recovery  by  a  non-electing 
employee,  it  would  be  obviously  improper  in  this  opinion  to 
undertake  to  say." 

§  209.  Defenses   of   Electing    Employer   Against    Electing 
Employee. 

Where  both  employer  and  employee  are  under  the  act, 
the  defenses  to  liability  for  compensation  are  only  those 
which  are  granted  by  the  terras  of  the  act.  Some  of  the 


DEFENSES  TO' COMPENSATION  263 

defenses  which  may  be  set  up  to  defeat  the  payment  of 
compensation  are  set  forth  in  the  following  sections. 

§  210.  Relation  of  Employer  and  Employee  Must  Exist. 

An  employer  can  defend  a  claim  for  compensation  on 
the  ground  that  the  relation  of  employer  and  employee  does 
not  exist  within  the  meaning  of  the  act.  See  Chapter  I 
in  general.  For  instance  it  could  be  proved  that  the  em- 
ployee came  within  the  exempted  employments.  Domestic 
§48,  Agricultural  §49,  Casual  Employment  §§37-47 ;  or  Inter- 
state Commerce  §§50-54;  or  was  an  independent  contractor, 
§§28-35. 

§  211.  There  Must  Be  an  Accident  or  Injury. 

An  employer  can  defend  a  compensation  claim  on  the 
ground  that  the  disability  complained  of  was  not  due  to 
an  "accident"  or  "injury,"  as  the  case  may  be,  although 
all  the  other  conditions,  necessary  to  bring  the  parties 
within  the  act  existed.  See  Chapter  II.  generally  and  §§74- 
79  in  particular. 

§  212.  Must  Arise  Out  of  and  in  the  Course  of  Employment. 

The  employer  can  defend  on  the  ground  that  the  acci- 
dent or  injury  did  not  arise  out  of  as  well  as  in  the  course 
of  the  employment.  This  is  a  defense  very  frequently 
interposed.  Consult  Chapter  III  for  a  full  discussion  of  this 
question. 

§  213.  Refusal  to  Accept  Employment  As  Defense. 

The  Kentucky  and  Indiana  acts  have  provisions  to  the 
effect  that  if  an  injured  employee  to  whom  the  employer 
is  paying  compensation,  or  who  is  demanding  it  from  the 
employer,  refuses  to  accept  employment  offered  him  which 
was  reasonably  suited  to  his  capacity  for  work  and  his 
physical  condition,  he  forfeits  compensation  during  such 
time  unless  the  board  should  hold  that  his  refusal  was 
justifiable.  Whether  or  not  the  refusal  was  justifiable 
would  probably  be  determined  by  the  same  line  of  reason- 
ing as  in  the  case  of  refusal  to  submit  to  an  operation  or 


264  MANUAL  OF  COMPENSATION  LAW 

follow  medical  advice.  If  there  was  no  medical  evidence 
that  the  employment  offered  would  be  unsuitable,  or  if  the 
weight  of  impartial  medical  opinion  was  to  the  effect  that 
the  employment  offered  was  suitable,  a  refusal  to  accept 
it  would  probably  be  held  unjustifiable. 

For  note  discussing  the  English  cases  on  this  subject, 
see  10  N.  C.  C.  A.  1081-1095. 

§  214.  Refusal  to  Allow  Physical  Examination. 

Where  an  employer  has  been  paying  compensation  or 
where  the  injured  man  is  clafrning  compensation  but  re- 
fuses to  submit  to  a  medical  examination  to  determine  the 
nature  and  extent  of  the  injuries  or  disability,  such  re- 
fusal is  usually  a  defense  to  the  payment  of  compensation. 
See  §§  192-194. 

§  215.  Refusal  to  Submit  to  Surgical  Operation  or  Follow 
Medical  Advice. 

When  the  employee  disobeys  the  instructions  or  fails 
to  follow  the  advice  or  treatment  prescribed  by  the  phy- 
sician and  thereby  aggravates  his  injury  or  increases  his 
disability,  such  conduct  is  often  a  defense  to  the  payment 
of  compensation  and  is  sometimes  termed  willful  miscon- 
duct. The  refusal  to  submit  to  reasonable  treatment  or 
to  a  surgical  operation  which  will  relieve  disability  with- 
out great  danger  to  the  life  of  the  injured  man,  is  gener- 
ally a  defense  to  the  payment  of  compensation  during  such 
refusal.  See  §§  195-196. 

§  216.  Failure  to  Give  Notice  of  Injury. 

Where  the  employee  has  failed  to  give  the  notice  of  in- 
jury, in  the  manner  and  within  the  time  provided  by  the 
act,  and  when  the  employer  has  no  knowledge  of  the  injury 
and  there  is  no  reasonable  excuse  for  the  failure  of  the  em- 
ployee to  give  such  notice,  the  lack  of  notice  is  usually  a 
defense  to  a  claim  for  compensation.  See  §§  198-205. 

§  217.  Limitations. 

The  acts  usually  provide  a  limitation  period  within 
which  claim  for  compensation  must  be  made.  Failure  to 


DEFENSES  TO  COMPENSATION  265 

make  claim  within  such  period  in  the  manner  provided  by 
the  act  is  a  defense  to  compensation.    See  §  206. 

§  218.  Willful  Self-inflicted  Injury  As  a  Defense. 

No  cases  in  courts  of  last  resort  have  been  found  dealing 
with  this  state  of  affairs.  The  meaning  of  the  act  having 
such  a  provision,  however,  is  very  plain.  No  employee  is 
entitled  t(5  compensation  if  he  deliberately  and  willfully 
inflicts  injury  upon  himself  or  intentionally  puts  himself  in 
a  position  to  be  injured  in  order  to  collect  compensation.  It 
is  not  likely  that  this  situation  will  arise  often  because  there 
is  no  compensation  for  the  waiting  period  (see  §  127) ,  and 
the  benefits  provided  would  be  unlikely  to  tempt  a  workman 
to  maim  himself.  If  this  defense  is  set  up  by  an  employer, 
the  burden  is  on  him  to  prove  that  the  injury  was  both 
willful  and  self-inflicted.  Acts  which  at  common  law  would 
amount  to  gross  negligence  on  the  part  of  the  employee  do 
not  imply  "purposely  self-inflicted"  injury  under  the  Ohio 
act.  Stopyra  v.  U.  S.  Coal  Co.,  Vol.  1  No.  7,  Bui.  Ohio,  Indus. 
Com.,  p.  92. 

§  219.  Willful  Misconduct  as  a  Defense. 

While  the  term  "willful  misconduct"  includes  what  was 
before  known  as  "contributory  negligence,"  the  terms  are 
by  no  means  synonymous.  Reeks  v.  Kynoch,  Ltd.,  3  B. 
W.  C.  C.  14,  2  N.  C.  C.  A.  (note)  860.  In  re  Burns  (Mass.) 
105  N.  E.  601,  5  N.  C.  C.  A.  635,  the  court  said:  "Serious 
and  willful  misconduct  is  much  more  than  mere  negligence 
or  even  than  gross  or  culpable  negligence.  It  involves  con- 
duct of  a  quasi  criminal  nature,  the  intentional  doing  of 
something  either  with  knowledge  that  it  is  likely  to  re- 
sult in  serious  injury  or  with  a  wanton  and  reckless  disre- 
gard of  its  probable  consequences." 

Where  the  negligence  of  the  employee  consists  of  mere- 
ly thoughtless  or  careless  action  on  his  part,  it  is  not  will- 
ful misconduct.  So  in  the  case  of  an  employee  who  was 
injured  loading  automobiles  on  a  car  and  who  crossed 
through  the  standing  train  without  looking  to  see  whether 


266  MANUAL  OF  COMPENSATION  LAW 

it  was  ready  to  start,  the  Michigan  court  said:  "While  it 
is  quite  clear  that  the  claimant's  injury  was  brought  about 
by  his  own  gross  negligence,  we  are  of  the  opinion  that  it 
can  not  be  said  as  a  matter  of  law,  that  he  was  guilty  of 
such  intentional  and  willful  misconduct  as  would  defeat  his 
recovery.  Gignac  v.  Studebaker  Corp.  186  Mich.  576,  152 
N.  W.  1037,  L.  R.  A.  1916A  (note)  243. 

In  the  case  of  Great  Western  Power  Co  v.  Pillsbury 
(Cal.)  149  Pac.  45,  9  N.  C.  C.  A.  466,  L.  R.  A.  1916A  (note) 
244,  where  a  lineman,  working  about  live  wires,  was  fur- 
nished with  rubber  gloves  and  instructed  to  use  them  but 
was  injured  because  of  his  failure  to  do  so,  the  court  said: 
"It  can  not  be  doubted  that  a  workman  who  violates  a  rea- 
sonable rule  made  for  his  own  protection  from  serious  bodi- 
ly injury  or  death  is  guilty  of  misconduct,  and  that  where 
the  workman  deliberately  violates  the  rule  with  knowledge 
of  its  existence,  and  of  the  dangers  accompanying  its  vio- 
lation, he  is  guilty  of  willful  misconduct." 

In  re  Nickerson,  218  Mass.  158,  105  N.  E.  604,  5  N.  C. 
C.  A.  645,  an  employee  had  been  engaged  to  do  some  white- 
washing. He  was  told  not  to  work  around  the  machinery 
or  shafting  until  the  noon  hour  when  it  was  stopped.  He 
started  to  work  there  shortly  before  it  was  time  for  the  ma- 
chinery to  stop  and  was  injured.  The  court  said:  "Here 
the  Industrial  Accident  Board  has  found,  in  accordance 
with  the  report  of  the  arbitration  committee,  that  this  was 
not  'serious  and  willful  misconduct';  that  'the  shafting 
and  machinery  were  about  to  stop  at  any  moment,  in  the 
mind  of  the  employee,  when  he  could  continue  to  work  with 
safety.  His  decision  to  do  some  whitewashing  during  this 
very  brief  interval  seems  more  like  a  sudden  thought  than 
a  willful  act.  It  seems  that  it  should  be  fairly  regarded 
as  a  minor  transgression,  at  most,  from  his  standpoint,  and 
not  as  'serious  and  willful  misconduct.'  .  .  .  The  fact  that 
the  injury  was  occasioned  by  the  employee's  disobedience 
to  an  order  is  not  decisive  against  him.  To  have  that  ef- 
fect the  disobedience  must  have  been  willful,  or  as  was  said 


DEFENSES  TO  COMPENSATION  267 

by  Lord  Lareburn,  in  Johnson  v.  Marshall,  Sons  &  Co.,  Ltd., 
App.  Cases  409,  411,  'deliberate,  not  merely  a  thoughtless 
act  on  the  spur  of  the  moment.' " 

In  Rideout  Co.  v.  Pillsbury  et  al.  —  Cal.  — ,  159  Pac.  435, 
a  deckhand  who  helped  to  unload  a  barge  at  the  end  of  a 
trip  was  last  seen  leaning  against  a  post  near  the  barge's 
edge  apparently  asleep.  The  owners  claimed  a  well  estab- 
lished rule  requiring  deckhands  to  remain  inside  during 
trips.  It  was  not  shown  that  anyone  instructed  the  de- 
ceased in  regard  to  this  rule  although  the  foreman  had  in- 
structed others.  It  was  also  shown  that  the  men  had  been 
playing  cards  on  the  deck  during  this  trip  and  that  the  fore- 
man had  joined  in.  It  was  held  that  this  testimony  was  not 
sufficient  to  establish  a  specific  rule.  As  to  the  conduct  of 
the  decedent  the  court  said.  "While  his  conduct  was  not 
careful  and  was  not  characterized  by  such  caution  as  would 
be  entirely  commendable  in  one  afloat  upon  such  a  craft, 
we  can  not  say  that  it  amounted  to  willful  misconduct." 

In  Brooklyn  Mining  Co.  et  al.  v.  Industrial  Ace.  Comm. 
—  Cal.  — ,  159  Pac.  162,  it  was  held  not  to  be  willful 
misconduct  for  a  miner  on  a  hot  day  to  rest  in  the  shade 
of  an  ore  bin  after  coming  out  of  the  shaft.  It  was  cus- 
tomary for  the  miners  to  do  this.  The  bin  collapsed  while 
he  was  resting  near  it  and  killed  him. 

It  was  held  to  be  willful  misconduct  in  California  for 
an  employee  to  drive  an  automobile  at  a  speed  prohibited 
by  the  Motor  Vehicle  Act.  Fidelity  &  Deposit  Co.  of  Mary- 
land v.  Industrial  Ace.  Comm.  171  Cal.  728,  154  Pac.  834. 

A  night  watchman  and  the  deputy  sheriff  shot  at  each 
other,  each  believing  that  the  other  was  an  escaping  rob- 
ber. The  defense  of  serious  and  willful  misconduct  was 
interposed.  The  Court  held  that  this  defense  could  not 
be  relied  upon  under  these  circumstances,  but  compensa- 
tion was  denied  for  another  reason.  In  re  Harbroe  222 
Mass.  139,  111  N.  E.  709. 

The  question  whether  or  not  an  employee  was  guilty  of 
willful  misconduct  was  held  to  be  a  jurisdictional  question, 


268  MANUAL  OF  COMPENSATION  LAW 

and  therefore  subject  to  review  by  the  Supreme  Court,  un- 
der the  California  Act.  Fidelity  &  Deposit  Co.  of  Mary- 
land v.  Industrial  Ace.  Comm.  171  Cal.  728,  154  Pac.  834. 

Notes  dealing  with  the  question  of  willful  misconduct 
can  be  found  in  L.  R.  A.  1916A  243-244  (American  cases) 
75-79.  English  cases) ;  2  N.  C.  C.  A.  860-884;  .4  N.  C.  C.  A. 
881-889;  8  N.  C.  C.  A.  889-905;  9  N.  C.  C.  A.  466-482;  12 
N.  C.  C.  A.  1032-1037. 

•§  220.  Reduction,  or  Forfeiture  of  Compensation  for  Dis- 
obedience of  Rules. 

In  Gates  v.  Cottonseed  Products  Co.  and  Millers'  Mu- 
tual Casualty  Co.,  Ky.  Workmen's  Comp.  Bd.  Dec.  Mar.  6, 
1917,  this  question  is  squarely  presented. 

Section  3  Kentucky  Act  of  1916,  in  so  far  as  it  af- 
fects the  point  involved,  is  as  follows:  "Notwithstanding 
anything  hereinbefore  or  hereafter  contained  no  employee 
or  dependent  of  any  employee  shall  be  entitled  to  receive 
compensation  on  account  of  any  injury  to  or  death  of  an 
employee  caused  by  a  willful  self-inflicted  injury,  willful 
misconduct  or  intoxication  of  such  employee." 

Section  29  of  the  Act,  in  so  far  as  it  affects  the  point 
involved,  is  as  follows:  "Where  the  accident  is  caused 
in  any  degree  by  the  intentional  failure  of  the  employee  to 
use  any  safety  appliance  furnished  by  the  employer,  or  to 
obey  any  lawful  and  reasonable  rule,  order  or  regulation 
of  the  Board  or  the  employer  for  the  safety  of  employees 
or  the  public,  the  compensation  for  which  the  employer 
would  have  otherwise  been  liable  under  this  act,  shall  be 
decreased  15  per  cent  in  the  amount  of  each  payment ;  pro- 
vided, however,  that  nothing  in  this  section  shall  be  con- 
strued to  conflict  with  or  impair  any  of  the  provisions  of 
Section  3  of  this  Act." 

The  facts  of  the  case  were  as  follows:  Frank  Gates 
was  working  in  the  tunnel  of  a  seed  house.  Along  the  floor 
of  this  tunnel  runs  a  screw  conveyor,  enclosed  in  a  box  18 
inches  deep  by  18  inches  wide,  leaving  about  two  feet  of 
floor  space  along  each  side.  This  conveyor  box  is  covered 


DEFENSES  TO  COMPENSATION  269 

with  iron  bars  set  at  3-inch  centers,  except  that  where 
the  hangers  for  the  conveyor  shaft  are  placed  the  space  be- 
tween the  gratings  is  between  four  and  one-half  and  six 
inches.  The  employer  adopted  a  rule  forbidding  all  per- 
sons to  walk  on  the  conveyor  gratings  and  made  a  custom 
of  explaining  this  rule  to  each  employee  personally  when 
hiring  him.  The  foreman  also  made  it  a  point  to  order 
any  one  off  the  conveyor  whom  he  saw  walking  on  it,  and 
told  other  employees  to  warn  each  other  to  keep  off  this  con- 
veyor. Gates  admitted  the  knowledge  of  the  rule  and  the 
fact  that  the  foreman  had  instructed  him  not  to  walk  on 
this  conveyor.  There  was  testimony  to  the  effect  that  the 
foreman  had  warned  Gates  not  to  walk  on  this  conveyor 
on  the  morning  of  the  accident  and  that  a  fellow-workman 
had  seen  him  walking  on  it  five  minutes  before  the  accident 
and  had  warned  him  off. 

In  walking  on  this  conveyor  in  direct  violation  of  the 
rules  one  of  Gates'  feet  slipped  through  the  bars  in  some 
way  and  was  so  badly  injured  that  the  amputation  of  the 
leg  was  necessary.- 

A  part  of  the  opinion  of  the  Board  is  quoted  as  follows : 

Commissioner  Caldwell  said: 

"There  being  no  issue  in  the  evidence  as  to  the  fact  that 
plaintiff  intentionally  walked  upon  the  conveyor  grating  in 
direct  disregard  of  specific  instructions  given  him  by  both 
the  superintendent  and  the  foreman,  it  is  manifest  that 
there  must  be  either  a  15  per  cent  forfeiture  of  compensa- 
tion under  Section  29,  or  a  total  forfeiture  under  Section  3 
if  the  plaintiff's  actions  amount  to  willful  misconduct  within 
the  meaning  of  the  act.  What  is  'willful  misconduct'  is  nec- 
essarily a  mixed  question  of  law  and  fact.  Like  'reasonable 
care,'  'gross  negligence,'  and  similar  legal  terms,  it  is  not 
susceptible  of  being  abstractly  defined  in  terms  which 
would  with  uniform  certainly  fix  a  line  of  demarcation  be- 
tween what  would  be  'willful  misconduct'  and  what  would 
not,  in  advance  of  the  particular  act  upon  which  it  is  to  be 
predicated.  It  will  always  be  necessary  in  passing  upon 


270  MANUAL  OF  COMPENSATION  LAW 

each  case  to  take  into  account  the  peculiar  facts  and  cir- 
cumstances of  that  case  as  it  may  arise,  along  with  such 
fixed  rules  of  construction  as  it  may  be  practicable  to  es- 
tablish in  advance. 

It  may  be  said,  however,  that  'willful  misconduct'  is  to 
be  clearly  distinguished  from  the  'contributory  negligence' 
which  is  a  defense  at  common-law.  It  is  not  enough  that 
the  employee  may  have  been  negligent,  even  to  the  extent 
that  the  injury  is  caused  solely  by  his  own  negligence. 
'Willful  misconduct'  implies  positive  wrong-doing  rather 
than  negligence.  This  does  not  mean  that  the  act  done 
necessarily  must  be  legally  criminal  in  its  nature,  or  in- 
volve moral  turpitude,  since  it  is  readily  possible  for  a 
given  line  of  conduct  to  constitute  willful  misconduct  on 
the  part  of  the  employee  without  approximating  either. 
It  would  be  difficult  to  conceive  a  situation  more  aptly  il- 
lustrating the  difference  between  the  contributory  negli- 
gence and  willful  misconduct  than  the  direct  and  open  de- 
fiance by  the  employee  of  a  specific  order  of  the  employer 
forbidding  the  doing  of  a  given  act,  as  has  occurred  in  this 
case.  In  persisting  in  walking  on  the  conveyor  grating  in 
direct  and  intentional  disobedience  of  a  several-times  re- 
peated order  from  his  superintendent  and  foreman,  no  ele- 
ment of  negligence  or  failure  is  involved;  the  act  is  not 
only  misconduct,  but  is  also  obviously  willful.  To  require 
the  employer  to  compensate  an  injury  received  as  a  re- 
sult of  such  actions  would  be  to  deny  the  employer  any  au- 
thority in  the  conduct  of  his  business,  for  the  safe  con- 
duct of  which  the  law  holds  him  responsible. 

In  determining  whether  to  apply  the  total  forfeiture 
provision  for  willful  misconduct,  or  the  15  per  cent  for- 
feiture for  the  intentional  failure  to  observe  a  reasonable 
safety  rule  of  the  employer,  it  is  sufficient  to  say  that  the 
facts  of  each  case  will  have  to  determine.  That  a  given 
state  of  facts  includes  all  the  requirements  for  the  lesser 
penalty  does  not  necessarily  imply  that  it  may  not  reach 
further  and  fall  also  within  the  operation  of  the  greater. 


DEFENSES  TO  COMPENSATION  271 

The  presence  in  the  Kentucky  Act  of  the  15  per  cent  pen- 
alties of  Section  29  was  due  to  the  fact  that,  under  the 
earlier  acts,  the  contributory  negligence  of  the  injured  em- 
ployee did  not  constitute  a  defense  to  any  part  of  the  com- 
pensation liability,  whereas  his  willful  misconduct  invoked 
a  total  forfeiture  of  all  of  it.  There  was  no  equitable  way 
of  reaching  those  of  cases  which  lay  within  the  zone  be- 
tween these  two  extremes.  The  affording  of  an  intelli- 
gent means  of  reaching  that  character  of  case,  does  not, 
however,  in  any  degree  impair  the  effect  of  the  other  pro- 
visions of  Section  3  of  the  law  when  a  case  falls  clearly 
within  them.  An  express  provision  for  such  a  contingency 
is  reserved  in  the  last  sentence  of  Section  29,  which  con- 
cludes: 'Provided,  however,  that  nothing  in  this  section 
shall  be  construed  to  conflict  with  or  impair  any  of  the  pro- 
visions of  section  three  of  this  act.' 

"That  degree  of  positive  wrongdoing  which  would  con- 
stitute willful  misconduct  within  the  meaning  of  the  Com- 
pensation Act  does  so  just  as  readily  with  Section  29  in  the 
law  as  it  would  without  it." 

§  221.  Willful  Negligence  of  Employee. 

The  case  of  Taylor  et  al.  v.  Seabrook,  87  N.  J.  L.  407, 
94  Atl.  399,  11  N.  C.  C.  A.  710,  was  a  proceeding  under  the 
New  Jersey  act.  Compensation  was  awarded  for  death 
which  resulted  from  the  fall  of  a  masonry  pier  in  a  cellar 
which  the  employee  was  digging  out.  The  employer  con- 
tested the  award  on  the  ground,  among  others,  of  the  will- 
ful negligence  of  the  employee,  but  the  court  held  that  there 
in  no  provision  as  to  willful  negligence  in  the  law  applicable 
to  cases  of  compensation,  but  only  to  those  coming  under 
the  liability  section  of  the  statute ;  as  to  this  the  court  said : 

"The  first  ground  urged  for  a  reversal  is  that  the  acci- 
dent was  due  to  the  willful  negligence  of  the  deceased.  We 
think  counsel  misapprehends  the  provisions  of  the  act  of 
1911,  so  far  as  they  relate  to  willful  negligence.  All  that 
that  act  says  on  this  subject  is  contained  in  the  portion  of 
the  act  designated  as  section  1,  which  may  be  called,  for 


272  MANUAL  OF  COMPENSATION  LAW 

convenience,  the  employer's  liability  section  of  the  statute. 
In  this  part  of  the  act  the  liability  is  made  to  depend,  not 
upon  any  implied  contract  for  compensation,  but  upon  the 
negligence  of  the  employer,  either  at  common  law  or  re- 
sulting from  the  requirements  of  the  act  itself.  When  we 
come  to  section  2  we  find  that  the  provision  of  willful  neg- 
ligence is  entirely  omitted,  and  that  the  only  exemption 
is  when  the  injury  or  death  is  intentionally  self-inflicted,  or 
when  intoxication  is  the  natural  and  proximate  cause  of 
injury." 

§  222.  Intoxication  as  a  Defense. 

The  cases  dealing  with  intoxication  of  the  employee  at 
the  time  of  the  injury  as  a  defense  against  compensation, 
are  often  treated  under  the  head  of  "willful  misconduct" 
and  properly  so,  for  it  is  a  species  of  misconduct.  Yet  in- 
toxication at  the  time  of  the  injury  will,  under  many  acts, 
by  itself,  bar  a  recovery  although  without  it  the  defense 
of  "willful  misconduct"  could  not  be  established.  Usually 
intoxication  must  be  the  contributing  cause,  or  the  proxi- 
mate cause,  or  one  of  the  causes  of  an  injury,  but  in  Mary- 
land it  must  be  the  sole  cause.  It  has  also  been  held  under 
acts  where  intoxication  was  not  specifically  mentioned  as 
a  defense,  that  compensation  for  injuries  received  while 
under  the  influence  of  liquor  should  be  denied  because  the 
accident  did  not  arise  "out  of"  the  employment.  McCrae 
v.  Renfrew,  7  B.  W.  C.  C.  898 ;  Murphy  v.  Cooney,  7  B.  W. 
C.  C.  962;  Horsfall  v.  The  Jura,  6  B.  W.  C.  C.  213;  Frith  v. 
The  Louisiana,  5  B.  W.  C.  C.  410;  Nash  v.  The  Rangatira, 
7  B.  W.  C.  C.  590;  Obrien  v.  Star  Line,  1  B.  W.  C.  C.  177. 
(See  L.  R.  A.  1916A  (note)  351.) 

Nekoosa-Edwards  Paper  Co.  v.  Industrial  Com.  of  Wis., 
154  Wis.  105, 141  N.  W.  1013,  L.  R.  A.  1916A  348,  is  the  lead- 
ing case  under  the  Wisconsin  act.  The  Wisconsin  act  does 
not  specifically  state  that  intoxication  bars  compensation 
although  proof  of  this  fact  diminishes  the  award  by  fifteen 
per  cent.  The  statute  provides  compensation  "where  the 
injury  is  proximately  caused  by  accident,  and  is  not  so 


DEFENSES  TO  COMPENSATION  273 

caused  by  willful  misconduct."  It  also  provides  that  the 
findings  of  fact  made  by  the  board  acting  within  its  powers 
shall,  in  the  absence  of  fraud,  be  conclusive.  The  circuit 
court  of  Dane  County  set  aside  the  award  of  the  commis- 
sion on  the  ground  that  it  had  acted  in  excess  of  its  powers 
in  making  the  award.  The  supreme  court  of  the  State, 
three  judges  dissenting,  reversed  the  judgment  of  the  court 
below  and  directed  that  the  award  of  the  industrial  com- 
mission be  affirmed.  The  court,  said,  in  part: 

"It  is  quite  possible  for  a  person  to  be  in  an  intoxicated 
condition  which  condition  proximately  caused  the  accident 
which  proximately  caused  the  death  and  yet  not  be  guilty 
of  willful  misconduct.  The  drinking  of  intoxicating  liquor 
is  willful  in  the  sense  of  intentional,  but  the  mere  fact  of 
drinking  is  not  misconduct.  By  section  1561  any  person 
found  in  any  public  place  in  such  a  state  of  intoxication 
as  to  disturb  others,  or  unable  by  reason  of  his  condition  to 
care  for  his  own  safety  or  for  the  safety  of  others,  is  guilty 
of  a  misdemeanor.  This  is  misconduct  and  if  one  inten- 
tionally put  himself  in  this  condition  he  might  be  said  to 
be  guilty  of  willful  misconduct.  But  there  are  many  cases 
where  although  the  drinking  is  intentional  the  intoxication 
is  not,  as  for  instance  where  one  by  reason  of  fatigue,  hun- 
ger, sickness,  or  some  abnormal  condition  becomes  intoxi- 
cated in  consequence  of  imbibing  a  quantity  of  liquor  which 
ordinarily  would  not  so  affect  him.  While  intoxication  in 
such  case  to  the  degree  specified  might  be  a  misdemeanor 
under  the  statute  quoted  it  is  not  necessarily  willful  mis- 
conduct within  the  compensation  act.  The  intoxication 
might  under  such  circumstances  be  the  proximate  cause  of 
an  accident  resulting  in  injury  or  death  and  yet  not  have 
reached  that  degree  specified  in  this  statute  as  in  case  where 
it  produced  mere  drowsiness. 

There  was  evidence  in  the  instant  case  that  deceased 
was  slightly  intoxicated,  that  he  drove  out  of  the  clay  pit 
standing  up  on  his  load,  that  he  was  perfectly  able  to  take 
care  of  himself  and  drive  his  team  when  last  seen  alive. 


274  MANUAL  OF  COMPENSATION  LAW 

There  was,  therefore,  room  to  find  upon  the  evidence  not 
only  with  respect  to  the  degree  of  intoxication,  but  that 
there  was  no  intention  or  purpose  to  put  himself  in  a  dan- 
gerous or  helpless  condition  of  intoxication.  The  industrial 
commission  has  jurisdiction  to  pass  on  these  very  questions, 
and  their  finding  above  referred  to  does  determine  these 
questions.  It  finds  that  Smith  was  in  an  intoxicated  con- 
dition which  proximately  caused  the  accident  but  that  the 
accident  was  not  caused  by  willful  misconduct.  This  means 
that  he  did  not  willfully  bring  upon  himself  such  degree 
of  intoxication. 

If  we  were  authorized  to  review  the  evidence  we  might 
come  to  a  different  conclusion.  But  the  statute  is  manda- 
tory that  the  award  shall  not  be  set  aside  on  such  ground. 
The  industrial  board  has  jurisdiction  to  decide  whether  or 
not  the  intoxication  which  caused  the  death  or  injury  was 
willful,  consequently  it  did  not  act  in  excess  of  its  powers 
in  deciding  the  negative  in  the  instant  case.  There  is  no 
claim  that  the  award  was  procured  by  fraud  and  the  find- 
ings of  fact  support  the  award.  Hence,  without  reaching 
the  interesting  questions  put  forward  in  the  briefs  of  coun- 
sel, we  reverse  the  judgment  of  the  circuit  court  and  di- 
rect that  the  award  of  the  industrial  commission  be  af- 
firmed." 

The  dissenting  opinion  was  prepared  by  Judge  Barnes. 
Inasmuch  as  the  prevailing  opinion  conceded  that  "if  we 
were  authorized  to  review  the  evidence  we  might  come  to 
a  different  conclusion,"  the  views  of  the  dissenting  judges 
are  in  part  reproduced  as  follows : 

"The  plain  unvarnished  tale  in  this  case  is  that  Smith, 
an  habitual  toper,  left  his  work,  went  to  a  saloon  some  dis- 
tance from  his  place  of  employment,  got  a  partial  'jag'  on, 
started  back  with  a  bottle  of  whisky,  and  got  so  drunk 
that  thereafter,  while  he  was  driving  his  team  over  a 
smooth  road,  he  fell  off  the  wagon  and  broke  his  neck.  The 
commission  did  not  find  that  the  deceased  got  drunk  by 
accident.  There  was  no  evidence  in  the  case  to  warrant  any 


DEFENSES  TO  COMPENSATION.  275 

such  finding.  It  did  not  award  damages  on  any  such  the- 
ory. It  plainly  says  so  in  its  decision.  After  holding  that 
the  claimant  was  drunk  at  the  time  he  fell  off  the  wagon 
and  that  the  drunkenness  caused  his  death,  it  says:  'The 
question  we  have  to  decide  is  whether  or  not  such  intoxica- 
tion is  a  defense  against  compensation.'  And  in  conclusion 
the  commission  says:  'If  the  legislature  had  so  intended, 
we  believe  that  it  would  have  specifically  so  provided  in  the 
act.' 

It  was  not  found  that  the  deceased  got  drunk  on  an 
unusually  small  allowance  of  liquor  because  of  sickness, 
hunger,  or  any  other  reason.  Such  a  finding  would  totally 
lack  support  in  the  evidence.  Where  a  party  accustomed 
to  the  use  of  liquor  drinks  it  until  he  gets  drunk,  the  pre- 
sumption is  that  he  intended  to  do  just  what  he  did  do.  It 
was  for  the  claimant  to  show  by  some  facts  or  circum- 
stances that  for  some  reason  or  other  the  deceased  drank 
less  liquor  than  was  ordinarily  necessary  to  produce  stu- 
pefaction in  the  instant  case.  No  such  evidence  was  pro- 
duced. I  think  the  circuit  court  was  clearly  right  in  hold- 
ing that  there  could  be  no  recovery,  and  that  the  commis- 
sion would  have  reached  the  same  conclusion  had  it  con- 
strued the  law  as  the  circuit  court  did  and  as  this  court 
does.  The  judgment  of  the  court  is  based  on  a  finding  of 
fact  which  the  commission  did  not  make,  to  wit,  that  the 
deceased  did  not  intend  to  get  drunk.  What  the  commission 
in  reality  concluded  was  that  intention  was  immaterial  be- 
cause an  allowance  might  be  made  for  an  injury  resulting 
from  intentional  intoxication." 

In  State  v.  District  Court  of  Meeker  County  128  Minn. 
221,  150  N.  W.  623,  it  was  held  that  the  employee  came  to 
his  death  by  an  accident  in  the  course  of  his  employment 
and  not  because  he  was  intoxicated.  His  death  was  caused 
by  the  overturning  of  an  automobile  which  he  was  driving. 
There  was  evidence  both  ways  on  the  question  of  intoxica- 
tion and  sufficient  evidence  that  he  was  not  intoxicated  to 
justify  the  trial  court  in  so  holding. 


276  MANUAL  OF  COMPENSATION  LAW 

In  American  Ice  Co.  v.  Fitzhugh  et  al.  —  Md.  — ,  97  Atl. 
999,  the  court  said  that  under  the  Maryland  act,  "the  in- 
jury for  which  compensation  is  sought  must  be  due  exclu- 
sively or  entirely  to  the  intoxication  of  the  employee  in 
order  to  constitute  a  defense  to  the  claim." 

In  Collins  v.  Cole  99  Atl.  830  (R.  I.),  it  was  held  that 
when  a  watchman  on  a  dredge  was  intoxicated  at  5  o'clock 
and  when  he  later,  being  on  duty  at  6  o'clock,  made  several 
trips  to  shore  and  became  more  drunk  so  that  he  rowed 
his  boat  in  the  wrong  direction  and  later  drank  more  whis- 
ky, his  dependents  could  not  recover  for  his  death  in  an 
attempt  to  rescue  a  man  in  similar  condition,  when  in  at- 
tempting the  rescue  he  stands  up  in  a  tippy  skiff,  overturns 
it  and  drowns. 

Under  the  California  act  in  a  decision  of  the  board  in 
Arnold  v.  Benjamin,  1  Cal.  Ind.  Ace.  Comm.  Bui.  (No.  22, 
1914)  44,  9  N.  C.  C.  A.  (note)  254,  a  painter  who  fell  from 
a  scaffold,  admitted  he  had  indulged  in  but  denied  he  was 
under  the  influence  of  liquor.  The  board  said:  "While  no 
general  rule  can  be  announced  to  cover  cases  in  which  in- 
toxication is  pleaded  as  a  defense,  we  deem  it  of  impor- 
tance to  indicate  with  certainty  the  policy  to  be  pursued  by 
the  commission  with  reference  to  each  particular  case  in 
which  this  defense  is  set  up.  Intoxication  does  not  mean 
a  condition  of  drunkenness  resulting  in  helplessness.  It 
can  only  be  the  proximate  cause  of  the  accident  in  cases 
where  it  is  the  major  contributing  cause  of  the  accident. 
We  do  not  deal  with  degrees  of  intoxication.  We  do  an- 
nounce that  where  the  indulgence  in  intoxicants  results  in 
the  impairment  of  a  workman's  faculties,  which  he  would 
ordinarily  use  to  safeguard  himself  against  danger  when  he 
is  working  with  dangerous  appliances  or  necessarily  working 
in  an  obviously  dangerous  place,  requiring  the  exercise  of 
those  faculties,  and  it  is  plain  that  the  impairment  of 
those  faculties  as  the  result  of  intoxication  is  the  major 
contributing  cause  of  the  accident,  such  intoxication  will 
be  held  to  be  the  proximate  cause  of  the  accident  and  the 


DEFENSES  TO  COMPENSATION  277 

benefits  of  the  law  will  be  withheld.  We  believe  that  the 
legislature  has  expressed  a  plain  intention  that  no  indus- 
try shall  be  charged  with  the  burden  of  indemnifying  an 
injured  employee  whose  injury  is  proximately  caused  by 
intoxication  as  here  defined." 

The  Court  of  Appeals  in  National  Council  of  Knights 
and  Ladies  of  Security  v.  Wilson,  147  Ky.  296,  143  S.  W. 
1000,  Thomas'  Kentucky  Words  and  Phrases,  p.  267,  de- 
fines this  term  as  follows:  "Intoxication  is  a  term  which 
in  its  everyday  application,  is  given  a  very  broad  mean- 
ing. To  some  men  it  means  being  under  the  influence  of 
the  intoxicant  to  such  an  extent  as  to  render  the  person 
helpless;  while  others  speak  of  one  as  intoxicated  when 
slightly  under  the  influence  of  the  intoxicant.  Webster  de- 
fines it  as  'State  of  being  drunk,  inebriety,  drunkenness.' " 

For  other  cases  on  this  subject,  see  L.  R.  A.  1916A 
(note)  351,  9  N.  C.  C.  A.  (note)  245-263. 

§  223.  Malingering  as  a  Defense. 

The  fact  that  a  claimant  is  feigning  disability  may  al- 
ways be  established  by  the  employer  to  defeat  compensa- 
tion. It  may  be  proved  in  the  first  instance  to  escape  the 
payment  of  any  compensation,  or  it  may  be  set  up  as  a  de- 
fense to  the  further  paying  of  compensation  already  al- 
lowed. Of  course,  the  testimony  in  the  nature  of  the  case, 
is  usually  almost  altogether  medical.  But  any  actions  of  the 
injured  man  inconsistent  with  the  character  of  the  disability 
for  which  he  is  claiming  or  receiving  compensation  are 
competent  to  establish  the  defense.  Whether  or  not  a  man 
is  malingering  is  a  question  of  fact. 

In  Silcock  &  Sons  v.  Golightly,  1  K.  B.  748,  111  N.  C. 
C.  A.  31,  the  opinion  of  Lord  Cozens-Hardy,  with  which 
the  other  judges  of  the  Court  of  Appeal  of  England  agreed, 
is  in  full  as  follows: 

"This  is  an  appeal  from  a  decision  of  the  learned  Coun- 
ty Court  Judge,  who  has  reduced  compensation  payable 
in  respect  of  an  admitted  accident  from  11s  a  week  to  7s  6d 
a  week. 


278  MANUAL  OF  COMPENSATION  LAW 

Now  that  the  man  met  with  an  accident  when  he  was 
employed  is  quite  clear ;  he  lost  his  right  arm,  and  com- 
pensation has  been  paid  for  a  long  time.  The  employers 
seek  to  review,  and  they  say:  The  man  comes  into  Court, 
the  Judge  sees  him,  he  is  a  young  man,  he  is  a  strong  man, 
he  is  a  healthy  man;  and  the  evidence  which  was  brought 
before  the  learned  County  Court  Judge  at  Liverpool  was 
quite  clear  that  not  merely  on  one  occasion  but  on  several 
occasions — I  think  it  must  be  taken  frequently — he  walks 
about  and  carries  baskets  of  pigeons  belonging  to  his 
brother-in-law  and  to  himself.  He  does  that,  and  it  is  not 
a  case  of  a  man  who  is  physically  weak  and  physically  un- 
fit ;  it  is  a  case  of  a  man  who,  but  for  the  loss  of  an  arm, 
would  be  apparently  a  vigorous  able-bodied  man. 

What  has  happened  since  1909 — that  is  five  years  ago 
— is  that  he  has  not  only  done  no  work,  but  he  has  not  even 
sought  for  any  work  to  do ;  he  has  not  inserted  or  answered 
any  advertisements  or  made  any  application  for  work.  I 
think  it  is  really  a  bad  case  of  malingering.  But  although 
those  are  circumstances  we  can  not  disregard,  it  is  not  con- 
clusive, of  course,  of  the  case.  The  real  difficulty  which 
I  think  we  have  all  felt — certainly  I  have  felt — in  the  case, 
is  by  reason  of  the  authorities  on  this  branch  of  the  law 
which  I  feel  some  difficulty  in  altogether  reconciling.  There 
are  three  cases,  which  are — Proctor  v.  Robinson  (80  L.  J. 
K.  B.  641;  (1911)  1  K.  B.  1004,  Anglo-Australian  Steam 
Navigation  Co.  v.  Richards  (4  B.  W.  C.  C.  247),  and  Car- 
diff Corporation  v.  Hall  (80  L.  J.  K.  B.  644;  (1911)  1  K.  B. 
1009.)  It  so  happens  that  they  were  all  tried  before  the 
court  constituted  in  the  same  way.  I  was  a  dissentient  in 
one  of  the  decisions — the  Cardiff  case.  Those  are  decisions 
of  the  Court  of  Appeal.  I  should  not  be  otherwise  than 
glad  if  the  ultimate  tribunal  should  have  the  opportunity  of 
settling  the  law  on  this  branch  of  the  case. 

It  is  said  by  counsel  for  the  appellant,  who  argued  the 
case  very  well,  that  malingering  had  nothing  to  do  with 
the  present  case ;  and  he  says  there  is  no  ground  for  re- 


DEFENSES  TO  COMPENSATION  279 

during  the  compensation  unless  it  is  shown  not  only  that 
the  man  was  able  to  do  some  sort  of  work,  but  to  indicate 
some  particular  kind  of  work  which  he  is  able  to  do  and 
which  there  is  a  reasonable  prospect  of  his  being  able  to 
obtain  in  the  neighborhood.  On  the  other  hand  it  is  said, 
Oh,  this  is  a  case  in  which  the  learned  County  Court  Judge 
has  great  experience  in  Liverpool ;  Liverpool  is  a  place  where 
there  are  shipping  industries  and  other  kinds  of  employ- 
ment to  be  found,  and  the  Judge  is  entitled  to  take  advan- 
tage of  his  own  local  knowledge,  and  he  is  not  bound  to  re- 
quire evidence  to  satisfy  himself  that  the  man — who  has 
never  tried  to  get  suitable  work — might  have  got  it  if  he 
had  tried. 

On  the  whole  I  have  come  to  the  conclusion  that  we 
can  not  interfere  with  the  decision  of  the  learned  County 
Court  Judge.  I  think  that  he  was  entitled  to  take  advan- 
tage of  his  own  local  knowledge  and  to  say  that,  although 
this  man  is  a  left-handed  man,  he  is  not  so  disabled  from 
earning  anything  that  he  should  be  allowed  to  be  a  pen- 
sioner for  life  receiving  11s  a  week  from  his  employers, 
having  the  good  fortune  to  have  a  wife  who  is  earning  15s 
a  week,  and  so  live  in  comparative  ease  on  an  income  of 
26s  a  week  doing  nothing.  I  think  we  really  ought  not  to 
encourage  such  conduct,  and  I  think  that  the  learned  Judge 
was  justified  in  saying,  'From  my  local  knowledge  I  am  sat- 
isfied that  this  is  a  man  who  is  able  to  obtain  light  work  in 
Liverpool  if  he  wished  to  try.' 

Of  course,  on  some  future  occasion,  if  he  should  have 
made  attempts — honestly  and  in  good  faith  made  them — 
and  found  himself  unable  to  obtain  any  light  work  suitable 
for  his  infirmities,  then  it  may  be  open  to  him  to  apply  for, 
and  it  may  be  competent  for  the  learned  Judge  to  grant, 
an  increase  from  the  7s  6d  a  week  to  the  11s.  But  I  can  not 
say  that  we  are  bound  by  the  authorities  which  were  cited 
to  us  to  say  that  there  was  not  evidence  in  this  case  of  the 
man's  physical  condition  and  capacity;  and  that,  coupled 
with  the  Judge's  local  knowledge,  is  sufficient  to  maintain 


280  MANUAL  OF  COMPENSATION  LAW 

• 

the  award.    For  these  reasons  I  think  the  appeal  fails  and 
must  be  dismissed." 

§  224.  Malingering  or  Hysteria. 

In  Santini  v.  Mammoth  Copper  Mining  Co.  1  Cal.  Ind. 
Ace.  Comm.  Dec.  161,  11  N.  C.  C.  A.  (note)  32,  the  board 
said:  "While  there  is  some  difference  of  opinion  among  the 
physicians  testifying  as  to  whether  or  not  the  paralysis  of 
applicant's  arm  is  wholly  functional  and  due  to  hysteria, 
all  agree  that,  up  to  the  time  of  giving  their  testimony,  ap- 
plicant Santini  has  suffered  a  total  paralysis  of  the  right 
arm,  and  is  unable  to  perform  manual  labor,  and  that  he  is 
not  a  malingerer.  The  difference  between  a  malingerer 
and  a  hysteric  is  that  the  malingerer  claims  disability  when 
he  knows  he  has  no  right  to  do  so,  and  the  victim  of  hys- 
teria claims  disability  in  the  unshakable  conviction  that  he 
is  disabled.  In  the  language  of  Dr.  McClenahan,  an  excel- 
lent authority  on  the  subject,  'His  injury  is  just  as  real  to 
him  as  though  it  actually  existed.' ' 

For  note  on  Malingering  see  11  N.  C.  C,  A.  31-42. 

§  225.  Burden  of  Proof. 

Whether  or  not  an  act  is  willful  is  a  question  of  fact. 
In  re  Nickerson  218  Mass.  158,  105  N.  E.  604,  Ann  Cas. 
1916A  790,  5  N.  C.  C.  A.  645.  The  burden  of  proof  for  es- 
tablishing willful  misconduct  is  on  the  employer,  Maffia  v. 
Aquilino,  3  Cal.  Ind.  Ace.  Comm.  Dec.  15 ;  likewise  intoxica- 
tion, Ruprecht  v.  Red  River  Lumber  Co.  2  Cal  Ind.  Ace. 
Comm.  Dec.  864.  If  it  was  denied  that  a  claimant  was  an 
employee  the  burden  would  likely  rest  upon  the  employee 
to  establish  the  relationship.  In  1  Greenleaf  on  Evid.  (15 
ed.)  §  74,  it  is  said:  "The  obligation  of  proving  any  fact 
lies  upon  the  party  who  substantially  asserts  the  affirma- 
tive of  the  issue."  The  burden  of  proving  that  the  accident 
causing  injury  or  death  arose  out  of  and  in  the  course  of 
employment  also  rests  on  the  claimant.  Thackway  v.  Con- 
nelly &  Sons,  3  B.  W.  C.  C.  37. 


DEFENSES  TO  COMPENSATION  281 

The  general  rules  of  evidence  concerning  the  burden  of 
proof  as  applied  in  civil  cases  at  common  law  will  also  be 
applicable  here. 


CHAPTER  X 

GENERAL  TOPICS 

Section. 

226.  Administrative  boards  or  Commissions. 

227.  Meaning  of  "all  questions  arising." 

228.  The  board  may  make  rules. 

229.  Findings  of  fact  conclusive  on  appeal. 

230.  Findings  of  law  not  conclusive  on  appeal. 

231.  Rules  of  evidence. 

232.  Right  of  board  to  hear  evidence. 

233.  Letters  rogatory  as  evidence. 

234.  Death  resulting  from  injury. 

235.  Proof  of  liability  >for  compensation. 

236.  Agreements — settlements  or  releases. 

237.  Releases. 

238.  Failure  to  agree  must  precede  application  for  hearing. 

239.  Lump  sum  settlements. 

240.  Appeals  in  general. 

241.  Time  limit  on  appeal. 

242.  Review  of  court  is  limited. 

243.  Employer  insured  in  New  York  State  Fund  has  no  appeal. 

244.  Insurer  cannot  appeal  on  distribution  of  payments  alone. 

245.  Injuries  caused  by  third  persons. 

246.  Effect  when  both  employer  and  third  person  have  elected  act. 

247.  Rights  and  remedies  of  employer  against  third  person. 

248.  Effect  of  settlement  by  employee  with  third  persons. 

249.  Burial  expenses. 

250.  Deductions  from  compensation. 

251.  Contracting  out. 

252.  Right  of  compensation  as  prior  lien. 

253.  Claims  for  compensation  cannot  be  assigned  or  attached. 

254.  Attorney's  fees. 

255.  Reports  of  accidents  by  employer. 

256.  Deliberate  intention  to  produce  injury. 

257.  Willful  act  of  employer. 

258.  "Willful  and  known  violation"  of  statute — Kentucky. 

259.  Failure  to  comply  with  a  specific  statute — Kentucky. 

260.  Compensation  not  barred  by  failure  of  action  at  law. 

261.  Extra-territorial  effect  of  acts. 


GENERAL  TOPICS  283 

262.  Act  effective  outside  New  York. 

263.  Act  not  effective  outside  of  Massachusetts. 

264.  Theory — construction  of  acts. 

265.  Constitutionality  of  acts. 

§  226.  Administrative  Boards  or  Commissions. 

Some  of  the  acts  place  the  administration  of  them  in  one 
of  the  inferior  courts  but  the  majority  of  the  laws  create 
boards  or  commissions  upon  whom  the  responsibility  of  ad- 
ministration rests. 

These  bodies  are  not  courts.  Greene  v.  Caldwell  170  Ky. 
571,  186  S.  W.  648 ;  Mackin  v.  Detroit-Limkin  Axel  Co.  187 
Mich.  8,  153  N.  W.  49 ;  Menominee  Bay  Shore  Lumber  Co. 
v.  Industrial  Com.  162  Wis.  344,  156  N.  W.  151,  nor  are 
the  members  judicial  officers.  In  re  Hotel  Bond  89  Conn. 
143,  93  Atl.  245 ;  In  re  Pigeon  216  Mass.  51,  102  N.  E.  932, 
Ann  Cas.  1915A  737. 

They  were  formed  in  order  to  expedite  the  administra- 
tion of  the  act  and  do  away  with  the  technical  and  formal 
procedure  and  delays  of  a  court  of  law.  Reck  v.  Whittles- 
berger,  181  Mich.  463,  148  N.  W.  247,  Ann.  Cas.  1916C 
771. 

The  procedure  before  the  boards  is  usually  very  simple 
and  informal.  Hearings  are  set  at  some  place  convenient 
to  the  parties  and  as  soon  as  possible  after  the  application 
has  been  made.  The  board  or  commission  is  usually  em- 
powered to  subpoena  witnesses,  compel  their  attendance, 
administer  oaths,  hear  testimony,  and  make  findings  of 
fact  and  law  and  base  awards  or  orders  upon  them,  review 
their  own  orders  and  awards,  and  reopen  the  case  where 
a  showing  is  made  that  a  previous  award  is  wrong  because 
of  fraud,  mistake  or  change  in  conditions. 

An  application  for  review  because  the  findings  are  not 
sustained  by  the  evidence,  and  because  the  applicant  has 
new  evidence,  justifies  the  Board  in  granting  a  rehearing, 
under  the  California  Act.  Cordoza  v.  Pillsbury  145  Pac. 
1015. 

Under  the  Minnesota  Act  hearings  can  be  held  at  the 


284  MANUAL  OF  COMPENSATION  LAW 

time  and  place  fixed  by  the  Judge  regardless  of  the  time 
and  place  fixed  for  holding  regular  terms  of  court.  State 
v.  District  Court  of  St.  Louis  County  152  N.  W.  838,  129 
Minn.  423. 

It  is  not  the  purpose  of  this  work  to  go  exhaustingly 
into  the  questions  of  procedure  before  the  boards  or  com- 
missions of  the  various  States,  as  those  questions  are  gen- 
erally provided  for  specifically  by  the  act  or  the  rules  of  the 
board  or  commission,  made  under  it  and  are  questions  large- 
ly of  local  interest. 

In  re  American  Mutual  Liability  Insurance  Co.  215  Mass. 
480,  102  N..  E.  693,  4  N.  C.  C.  A.  60,  Ann.  Cas.  1914D  372, 
it  was  said: 

"The  workmen's  compensation  act  has  a  procedure  all 
of  its  own.  Where  the  act  is  adopted  by  the  parties,  a  re- 
lation arises  between  the  employee  and  the  employer,  under 
which  in  the  event  of  a  personal  injury  to  the  employee 
there  shall  be  speedy  ascertainment  of  the  new  kind  of 
compensation  created  by  the  act,  coupled  with  a  voluntary 
relinquishment  by  both  parties  of  the  right  to  trial  by  jury 
as  to  matters  covered  by  the  act.  One  main  purpose  of  the 
act  is  to  establish  between  employee  and  employer,  in  place 
of  the  common  law  or  statutory  remedy  for  personal  in- 
,  jury,  based  upon  tort,  a  system  whereby  compensation  for 
all  personal  injuries  or  death  of  the  employee  received  in 
the  course  of  and  arising  out  of  his  employment,  whether 
through  unavoidable  accident  or  negligence  or  otherwise 
(except  through  his  serious  and  willful  misconduct),  shall 
be  determined  forthwith  by  a  public  board,  and  paid  by  the 
insurer.  For  the  accomplishment  of  these  ends  a  simple 
method  is  furnished  operating  without  delay  or  unneces- 
sary formality.  The  practice  should  be  direct  and  flexible 
in  order  to  adapt  the  remedy  to  the  needs  of  the  particular 
case.  In  one  aspect  a  case  under  the  act  resembles  an  ac- 
tion at  law,  for  it  seeks  ultimately  the  payment  of  money. 
Payments,  however,  in  most  instances  are  by  installments. 
In, another  aspect  it  is  akin  to  the  specific  performance  of 


GENERAL  TOPICS  285 

a  contract,  designed  to  cover  the  whole  range  of  misfor- 
tunes likely  to  arise  in  the  course  of  employment  in  a  State 
with  many  and  diversified  industries.  Moreover,  the  com- 
pensation is  to  be  paid  not  directly  by  the  employer,  but  by 
the  insurer,  who  is  either  the  'Massachusetts  Employers' 
Insurance  Association'  created  by  part  4  of  the  act  or  any 
liability  insurance  company  authorized  to  do  business  with- 
in the  Commonwealth.  The  employee  has  no  immediate 
relation  with  the  insurer.  He  is  the  beneficiary  under  a 
contract  between  the  employer  and  insurer.  A  beneficiary 
under  any  instrument  to  which  he  is  not  a  direct  party  more 
naturally  looks  to  equity  rather  than  to  law  for  relief.  Part 
3,  section  11,  requires  a  'decree'  to  be  entered,  and  refers  to 
the  proceeding  as  a  'suit.'  Giving  due  weight  to  the  equi- 
table phraseology  employed  in  this  section  to  the  beneficent 
purposes  of  the  act,  which  can  be  enforced  better  through 
the  relief  afforded  by  equity,  and  to  the  character  of  the 
proceeding  itself  and  the  parties  thereto,  it  follows  that  in 
the  main  causes  under  the  act  in  court  should  be  treated 
as  equitable  rather  than  legal  in  nature,  procedure  and 
final  disposition." 

§227.  Meaning  of  "All  Questions  Arising/' 

Some  of  the  acts  have  a  blanket  clause  by  which  the 
board  is  given  jurisdiction  over  all  questions  arising  be- 
tween the  employer  and  the  employee,  or  some  one  claiming 
through  him,  concerning  the  liability  for,  or  the  amount 
or  duration  of,  compensation. 

The  English  act  uses  a  similar  phrase,  and  in  constru- 
ing it  the  court  said :  "There  must,  first  of  all,  be  a  'ques- 
tion' between  the  parties,  and  then  there  is  another  condi- 
tion, which  may  or  may  not  oust  the  jurisdiction — namely, 
that  the  question  is  not  settled  by  agreement.  .  . 
The  mere  giving  of  a  notice  of  a  claim  for  compensation 
did  not  raise  a  'question'  between  the  parties.  The  'ques- 
tion' to  be  settled  by  arbitration  must  be  a  question  as  to 
the  liability  to  pay  compensation,  or  as  to  the  amount  or 


286  MANUAL  ^)F  COMPENSATION  LAW 

duration  of  compensation."  Field  v.  Longden  &  Sons,  1  K. 
B.  47,  4  W.  C.  C.  20,  Harper's  Work.  Comp.  §  192. 

In  another  English  case  it  was  said.  "The  question 
raised  in  this  case  seems  to  me  to  be  one  of  great  impor- 
tance, because  it  comes  to  this,  whether  an  employer,  per- 
fectly willing  to  yield  to  the  law  and  give  the  workman  all 
that  he  is  entitled  to,  can  escape  the  penalty  of  litigation. 
In  this  case  it  is  clear  that  the  employer  was  willing  to  do 
everything  that  the  law  obliged  him  to  do."  Jones  v.  Great 
Central  Ry.  Co.,  18  T.  L.  R.  65,  4  W.  C.  C.  23,  Harper's 
Work.  Comp.  §  192. 

§  228.  The  Board  May  Make  Rules. 

It  would  be  impracticable  for  any  act  covering  such  a 
wide  field  as  the  compensation  act  does  to  deal  specifically 
with  every  detail  of  procedure  and  administration.  In  many 
States  boards  or  commissions  are  charged  with  the  ad- 
ministration of  the  acts  and  in  order  to  properly  attend  to 
this  duty  they  are  empowered  to  make  any  reasonable  rules 
not  inconsistent  with  the  provisions  of  the  act.  Any  sub- 
ject upon  which  the  legislature  has  not  spoken  in  detail 
and  which  has  to  do  with  carrying  out  the  provisions  of  the 
act  is  a  proper  subject  for  the  board  to  rule  upon.  And 
these  rules  must  be  complied  with  by  those  electing  to  come 
under  the  provisions  of  the  act.  If  the  rules  are  deemed 
unreasonable  or  illegal,  appeal  can  be  had  to  the  courts. 
If  the  act  does  not  specifically  state  that  the  rules  shall  be 
reasonable,  such  a  condition  would  doubtless  be  construed 
to  be  the  intention  of  the  legislature.  For  example  the 
board  could  adopt  forms  upon  which  the  different  kinds  of 
applications  to  the  board  should  be  made  and  issue  a  rule 
requiring  these  forms  to  be  used  in  all  cases. 

In  Zappala  v.  Industrial  Commission  of  the  State  of 
Washington,  82  Wash.  314, 144  Pac.  54,  L.  R.  A.  1916A  295, 
the  court  said:  "In  so  far  as  the  commission  has  adopted 
any  rules  that  pertain  to  the  administrative  features  or 
those  matters  that  are  peculiarly  within  the  control  of  the 
commission,  the  courts,  we  apprehend,  will  recognize  its 


GENERAL  TOPICS  287 

right  to  do  so.  But  this  does  not  mean  that  in  our  inter- 
pretation of  the  true  intent  and  purposes  of  the  act  on  a 
pure  question  of  law  we  are  bound  by  any  ruling  of  the 
commission.  If  so,  there  would  be  no  purpose  in  the  ap- 
peal to  the  courts  provided  by  the  act.  Whenever  the  In- 
dustrial Insurance  Commission  interprets  the  law,  that  in- 
terpretation is  reviewable  in  the  courts,  and  while  in  any 
given  case,  as  in  this,  the  courts  will  give  due  respect  to  the 
rulings  of  the  commission,  they  must  finally  act  upon  their 
own  determination  as  to  what  the  law  means  and  the  ex- 
tent to  which  it  is  applicable." 

§  229.  Findings  of  Fact  Conclusive  on  Appeal. 

Generally  all  awards  or  orders  of  the  board  or  commis- 
sion or  court  of  original  jurisdiction  are,  in  the  absence 
of  fraud,  conclusive  and  binding  as  to  all  questions  of  fact. 
But  if  it  is  found  on  appeal,  that  there  is  no  evidence  to  war- 
rant a  finding  of  fact,  the  court  may  set  aside  the  finding 
of  fact  made  by  the  board.  As  was  said  in  Milwaukee  Coke 
&  Gas  Co.  v.  Industrial  Commission,  160  Wis.  247,  151  N. 
W.  245,  8  N.  C.  C.  A.  1077,  "If  there  was  substantial,  credi- 
ble evidence  supporting  the  findings  of  the  commission,  the 
courts  can  not  interfere." 

In  the  case  of  City  of  Milwaukee  v.  Industrial  Commis- 
sion, 160  Wis.  238,  151  N.  W.  247,  8  N.  C.  C.  A.  1076,  it 
was  said:  "As  a  preliminary  to  the  determination  of  each 
one  of  the  questions  raised,  it  is  proper  to  again  call  at- 
tention to  the  fact  that,  in  the  absence  of  fraud,  the  find- 
ings of  fact  made  by  the  industrial  commission  are  con- 
clusive, and  its  order  or  award  can  be  set  aside  only  upon 
the  ground  (1)  that  it  acted  without  or  in  excess  of  its 
powers;  (2)  that  it  was  procured  by  fraud;  or  (3)  that  its 
findings  of  fact  do  not  support  the  order  or  award.  In  the 
present  case  the  last  two  grounds  are  not  relied  upon.  But 
it  is  claimed  the  commission  acted  without  or  in  excess 
of  its  powers  by  making  findings  having  no  support  in  the 
evidence.  If  this  be  so,  then  there  is  an  infirmity  in  the 
award  that  can  be  successfully  reached  and  remedied  upon 


288  MANUAL  OF  COMPENSATION  LAW 

appeal.  International  Harvester  Co.  v.  Industrial  Commis- 
sion, 157  Wis.  167,  147  N.  W.  53,  5  N.  C.  C.  A.  822.  But 
it  should  be  borne  in  mind  that  if  in  any  reasonable  view 
of  the  evidence,  it  will  support  either  directly  or  by  fair 
inference  the  findings  made  by  the  commission,  then  such 
findings  are  conclusive  upon  the  court.  .  .  It  was  not 
the  scheme  of  the  act  to  make  the  court  a  reviewer  of  facts. 
Its  office  is  to  relieve  against  fraud,  to  keep  the  commis- 
sion within  its  jurisdictional  bounds,  and  to  correct  an 
award  not  supported  by  the  facts  found." 

The  conclusiveness  of  the  findings  of  facts  by  industrial 
boards  is  supported  by  the  following  cases :  Borgnis.v.  Falk 
Co.  147  Wis.  327,  133  N.  W.  209,  3  N.  C.  C.  A.  649,  37  L.  R. 
A.  (N.  S.)  489;  Milwaukee  Western  Fuel  Co.  v.  Ind.  Comm., 
159  Wis.  635,  150  N.  W.  998;  Oldenberg  v.  Ind.  Comm., 
159  Wis.  333,  150  N.  W.  444 ;  Smith  v.  Ind.  Ace.  Comm.,  26 
Cal.  App.  560,  147  Pac.  600,  8  N.  C.  C.  A.  1066;  Poccardi 
v.  Public  Service  Comm.,  75  West  Va.  542,  84  S.  E.  242, 
L.  R.  A.  1916A  299,  8  N.  C.  C.  A.  1065 ;  Hotel  Bond  Co.'s 
Appeal,  89  Conn.  143,  93  Atl.  245,  8  N.  C.  C.  A.  1068;  Cain 
v.  Nat.  Zinc  Co.,  94  Kan.  679,  146  Pac.  1165,  rehearing  de- 
nied, 148  Pac.  251 ;  In  re  Fischer  220  Mass.  581,  108  N.  E. 
361,  8  N.  C.  C.  A.  1071 ;  Johnson's  Case,  217  Mass.  388,  104 
N.  E.  735,  4  N.  C.  C.  A.  843 ;  Weber  v.  American  Silk  Spin- 
ing  Co.,  (R.  I.)  95  Atl.  603;  Buckley's  Case,  218  Mass.  354, 
105  N.  E.  979,  5  N.  C.  C.  A.  613 ;  Rayner  v.  Sligh  Furniture 
Co.,  180  Mich.  168,  146  N.  W.  665,  L.  R.  A.  1916A  22,  4 
N.  C.  C.  A.  851 ;  Goldstein  v.  Center  Iron  Works,  167  App. 
Div.  526, 153  N.  Y.  Supp.  224 ;  Sexton  v.  Newark  Dist.  Teleg. 
Co.,  84  N.  J.  L.  85,  86  Atl.  451,  3  N.  C.  C.  A.  569,  affirmed 
86  N.  J.  L.  701,  91  Atl.  1070;  Nelson-Spelliscy  Imp.  Co.  v. 
Dist.  Ct.,  128  Minn.  221,  150  N.  W.  623.  In  re  Septimo  219 
Mass.  430,  107  N.  E.  63,  7  N.  C.  C.  A.  906;  In  re  Savage  222 
Mass.  205,  110  N.  E.  283;  Crowley  v.  City  of  Lowell,  223 
Mass.  288,  111  N.  E.  786;  Papinaw  v.  Grand  Trunk  Ry.  Co. 
(Mich.)  155  N.  W.  545;  Deem  v.  Kalamazoo  Paper  Co. 
(Mich.)  155  N.  W.  584;  Platt  v.  Central  N.  E.  Ry  Co.  169 


GENERAL  TOPICS  289 

App.  Div.  826;  155  N.  Y.  Supp.  854;  Eagle  Chemical  Co. 
v.  Novak,  161  Wis.  446,  154  N.  W.  631 ;  First  Nat'l  Bank  v. 
Ind.  Com.  of  Wis.  161  Wis.  526,  154  N.  W.  847. 

Where  the  Court  sent  a  case  back  to  the  Industrial 
Board  for  them  to  complete  the  record  according  to  the 
facts,  the  Board  had  no  authority  to  make  a  new  finding 
but  could  merely  complete  the  record  and  return  it.  In  re 
Doherty  222  Mass.  98,  109  N.  E.  887. 

The  mere  fact  that  evidence  was  weak  and  unsatis- 
factory to  support  the  contention  that  a  sister  was  par- 
tially dependent  upon  a  brother  could  not,  or  was  not  suffi- 
cient to  disturb  the  finding  of  fact  where  there  was  some 
evidence  to  support  it.  State  v.  District  Court  of  Ramsey 
Co.  156  N.  W.  120  (Minn.) 

A  finding  of  fact  which  is  warranted  by  the  evidence 
will  not  be  set  aside  by  the  court,  even  though  it  would 
have  been  inclined  to  decide  differently  from  the  Board.  In 
re  Von  Ette  223  Mass.  56,  111  N.  E.  696. 

Where  a  finding  of  fact  by  a  commission  is  not  based 
on  facts  proven  and  admitted,  or  an  inference  reasonably  de- 
ducible  therefrom  the  finding  may  be  reversed  as  an  error 
of  law.  Gardener  v.  Horseheads  Const.  Co.  171  App.  Div. 
66,  156  N.  Y.  S.  899. 

A  finding  of  fact  by  the  Industrial  Board,  under  the 
Mass.  Act  stands  on  the  same  footing  with  the  verdict  of 
the  jury  or  finding  of  the  court,  and  will  not  be  set  aside 
unless  wholly  unsupported  by  the  evidence — In  re  McPhee 
222  Mass.  1,  109  N.  E.  633.  In  re  Diaz  217  Mass.  36,  104  N. 
E.  384,  5  N.  C.  C.  A.  609. 

Hearsay  evidence  alone  is  not  sufficient  to  support  a  find- 
ing of  fact.  Englebretson  v.  Indus.  Ace.  Comm.  170  Cal. 
793,  151  Pac.  421,  10  N.  C.  C.  A.  545. 

See  further  L.  R.  A.  1916A  266-267;  8  N.  C.  C.  A.  1065- 
1077,  10  N.  C.  C.  A.  545-561. 


290  MANUAL  OF  COMPENSATION  LAW 

§  230.  Findings  of  Law  Not  Conclusive  on  Appeal. 

While  findings  of  fact  are  binding  upon  the  courts  where 
there  is  evidence  to  support  them,  findings  of  law  are  not. 
This  proposition  is  so  generally  accepted  as  to  make  the 
citation  of  authorities  to  support  it  almost  unnecessary. 
In  Hulley  v.  Moosbrugger  88  N.  J.  Law,  161,  95  Atl.  1007, 
L.  R.  A.  1916C  1203,  it  was  held  that  the  questions  of  law 
arising  upon  the  facts  found  were  reviewable  on  appeal. 

§  231.  Rules  of  Evidence. 

Section  47  of  the  Kentucky  Act  provides  that  "Pro- 
cesses and  procedure  under  this  act  shall  be  as  summary 
and  simple  as  reasonably  may  be."  Section  50  of  that  act 
provides  that  disputes  shall  be  determined  "in  a  summary 
manner."  "The  board  may  make  rules  not  inconsistent 
with  this  act  for  carrying  out  the  provisions  of  this  act." 
(See  section  47  of  that  act.)  Nowhere  is  it  stated  that 
the  regular  rules  for  the  production  of  evidence  can  be  dis- 
regarded, but  the  probable  intention  was  not  to  hamper  the 
board  in  getting  at  the  true  facts  by  confining  them  alto- 
gether to  the  technical  rules  of  evidence.  This  seems  to 
have  been  the  intention  of  the  f  ramers  of  most  of  the  acts 
now  in  force. 

It  has  been  held  that  an  award  can  not  be  based  on  mere 
conjecture  or  surmise  or  alone  on  hearsay  evidence.  Reck 
v.  Whittlesberger,  181  Mich.  463,  148  N.  W.  247,  Ann.  Gas. 
1916C  771,  5  N.  C.  C.  A.  917,  also  that  the  hearsay  rule  is 
not  a  technical  rule  of  evidence.  Employers'  Assur.  Corp. 
v.  Industrial  Ace.  Comm.  170  Cal.  800,  151  Pac.  423.  This 
was  under  a  provision  in  the  California  act  that  the  com- 
mission was  not  to  be  bound  by  the  technical  rules  of  evi- 
dence. In  Pigeon's  Case  216  Mass.  51,  102  N.  E.  932,  4  N. 
C.  C.  A.  516,  it  was  said  under  the  Massachusetts  act:  "As 
exceptions  do  not  lie  under  the  Workmen's  Compensation 
Act  and  the  only  way  to  bring  questions  of  law  to  this  court 
is  by  appeal,  it  follows  that  the  general  equity  rule  as  to 
consideration  of  questions  of  evidence  raised  at  a  hearing 
before  the  chancellor  ought  to  be  followed.  Such  ques- 


GENERAL  TOPICS  291 

tions  seasonably  presented  upon  the  record  will  be  con- 
sidered, but  a  decree  will  not  be  reversed  for  error  in  this 
respect  unless  the  substantial  rights  of  the  parties  appear 
to  have  been  effected." 

If  there  is  any  basis  in  the  competent  evidence  upon 
which  to  fasten  an  award,  it  will  not  be  reversed  merely  be- 
cause of  the  introduction  of  evidence  that  would  be  incom- 
petent in  a  court  of  law.  Englebretson  v.  Ind.  Ace.  Comm. 
170  Cal.  793,  151  Pac.  421,  10  N.  C.  C.  A.  545;  Fitzgerald 
v.  Lozier  Motor  Co.  187  Mich.  660,  154  N.  W.  67 ;  First  Nat. 
Bank  v.  Ind.  Comm.  161  Wis.  526,  154  N.  W.  846.  The 
New  York  court  in  Carroll  v.  Knickerbocker  Ice  Co  169 
App.  Div.  450,  155  N.  Y.  Supp.  1,  has  taken  a  view  contrary 
to  the  above.  But  this  was  reversed  in  218  N.  Y.  435,  113 
N.  E.  507.  See  further,  L.  R.  A.  1916A  (note)  267-268. 

In  proceedings  before  the  Michigan  Industrial  Board  a 
memorandum  of  a  foreman,  to  the  effect  that  the  deceased 
had  received  an  injury,  was  admissible  as  an  admission 
against  interest.  Fitzgerald  v.  Lozier  Motor  Co.  187  Mich. 
660,  154  N.  W.  67. 

The  burden  of  proving  the  facts  necessary  to  establish 
a  claim  under  the  act  is  on  the  claimant.  Corral  v.  Hamlyn 
&  Son,  94-Atl.  877.  (R.  I.) 

An  award  can  not  be  made  -under  the  Wisconsin  Act 
where  the  evidence  is  such  that  the  award  must  be  based 
on  conjecture  as  to  whether  or  not  an  infection,  causing 
the  loss  of  an  eye,  was  received  by  an  injury  in  the  course 
of  his  employment.  Voelz  v.  Industrial  Commission  of  Wis- 
consin 161  Wis.  240,  152  N.  W.  830. 

If  the  plaintiff  can  only  show  a  state  of  facts  upon  which 
compensation  could  be  denied  or  granted  with  equal  con- 
sistency, there  can  be  no  award.  In  re  Savage  222  Mass.  205, 
110  N.  E.  283. 

The  evidence  offered  by  one  attempting  to  prove  how  an 
accident  causing  death  occurred  is  not  limited  to  direct 
proof,  but  the  fact  may  be  established  by  circumstantial 
evidence.  In  re  Von  Ette  223  Mass.  56,  111  N.  E.  696. 


292  MANUAL  OF  COMPENSATION  LAW 

The  Appellate  Division  has  the  right  under  the  New 
York  Act  to  consider  all  the  evidence  introduced  before  the 
commission  upon  which  an  award  was  made,  supplementing 
and  explaining,  though  not  contradicting  the  finding  of  fact 
made.  Gleisner  v.  Gross  &  Harbener,  170  App.  Div.  37,  155 
N.  Y.  Supp.  946. 

An  award  of  the  Commission  based  on  a  finding  of  fact 
made  entirely  without  evidence  that  the  employee  was  in- 
jured in  the  course  of  his  employment  was  improper,  in 
spite  of  the  presumptions  of  the  law  to  the  contrary.  Col- 
lins v.  Brooklyn  Union  Gas  Co.  171  App.  Div.  381,  155  N. 
Y.  Supp.  957. 

An  employer's  notice  of  accident  is  competent  prima 
facie  evidence  of  the  facts  therein  stated,  but  it  may  be  con- 
tradicted. First  National  Bank  of  Milwaukee  v.  Ind.  Comm. 
161  Wis.  526,  154  N.  W.  847. 

Under  the  Illinois  Act  the  inquest  of  the  coroner  or  the 
finding  of  the  coroner's  jury  are  competent  evidence  as  to 
the  cause  of  death.  Armour  &  Co.  v.  Ind.  Bd.  of  111.,  273  111. 
590,  113  N.  E.  138.  It  was  so  ruled  because  a  proceeding 
under  the  Workman's  Compensation  Act  takes  the  place  of 
the  ordinary  action  at  law  for  negligence  in  which  such  evi- 
dence was  allowed.  Victor  Chemical  Works  v.  Ind.  Bd.  of 
111.,  274  111.  11,  113  N.  E.  173. 

For  note  on  sufficiency  of  evidence  in  the  absence  of  eye 
witnesses  see  10  N.  C.  C.  A.  618-645. 

§  232.  Right  of  Board  to  Hear  Evidence. 

In  Pigeon  v.  Employers'  Liability  Assurance  Corp'n, 
Ltd.,  216  Mass.  51,  102  N.  E.  932,  4  N.  C.  C.  A.  516,  a  ques- 
tion was  raised  as  to  the  admissibility  of  evidence  received 
at  the  hearing,  the  answer  turning  on  the  nature  of  the  pro- 
ceedings before  the  industrial  accident  board  and  its  status 
as  a  body,  it  being  argued  that  neither  the  commission  on 
arbitration  nor  the  industrial  accident  board  is  a  court 
within  the  meaning  of  the  State  statutes.  As  to  this  Judge 
Rugg  said : 

' 


GENERAL  TOPICS  293 

"Plainly  neither  is  a  court  in  the  strict  meaning  of  the 
word.  See  Opinion  of  Justices,  209  Mass.  607,  612,  96  N.  E. 
308.  The  members  are  not  'judicial  officers'  within  the 
Constitution.  Part  2,  c.  3,  art.  1.  But  they  are  given 
authority  to  summon  witnesses,  administer  oaths,  hold  hear- 
ings, take  testimony,  examine  evidence,  make  rulings  of  law 
and  findings  of  fact,  and  render  decisions.  See  part  3  of 
the  act.  Their  decisions  may  be  enforced  by  appropriate 
proceedings  in  courts.  The  power  to  take  testimony  and 
make  rulings  of  law  which  are  subject  to  review  by  the 
judicial  department  of  the  Government  goes  far  to  indicate 
that  in  performing  those  functions  they  are  to  be  guided 
and  controlled  by  the  same  general  principles  which  would 
govern  judicial  officers  in  discharging  the  same  duties. 
The  workman's  compensation  act  in  its  practical  operation 
affects  large  numbers  of  people.  Its  declared  purpose  is 
the  humane  one  of  preventing  industrial  accidents  and  pro- 
viding payments  for  employees  injured  in  the  course  of 
employment.  It  is  substitutional  in  character  for  the  com- 
mon-law remedy  for  a  class  of  injuries  formerly  adjusted 
by  actions  at  law.  The  word  'court'  has  been  used  in 
statutes  with  a  broader  significance  than  including  simply 
judicial  officers.  See  Aldrich  v.  Aldrich,  8  Mete.  102,  106. 
It  may  be  given  a  signification  liberal  enough  to  include  the 
committee  on  arbitration  and  industrial  accident  board  as 
constituted  by  the  act,  and  under  all  the  circumstances 
should  be  given  such  construction. 

It  is  further  contended  that  that  section  of  the  statute 
is  inapplicable  because  a  proceeding  under  the  workmen's 
compensation  act  is  not  an  'action,'  and  hence  the  declara- 
tion of  the  deceased  can  not  have  been  made  'before  the 
commencement  of  the  action.'  Here  again  the  definition 
urged  is  too  narrow.  Action  is  here  used  in  its  comprehen- 
sive sense  as  meaning  the  pursuit  of  a  right  in  a  court  of 
justice  without  regard  .to  the  form  of  procedure.  (Boston 
v.  Turner,  201  Mass.  190,  196,  87  N.  E.  634.)  A  proceed- 
ing under  the  act  contemplates  ultimate  enforcement  in  a 


294  MANUAL  OF  COMPENSATION  LAW 

judicial  court  and  a  declaration  made  before  the  institution 
of  proceedings  under  the  act  is  made  before  the  commence- 
ment of  the  action." 

§  233.  Letters  Rogatory  as  Evidence. 

In  re  Martinelli  (Mass.),  106  N.  E.  557,  Sylvio  Marti- 
nelli,  as  administrator,  petitioned  the  superior  court  of 
Hampden  county  to  issue  letters  rogatory  to  obtain  the  testi- 
mony of  witnesses  in  the  Kingdom  of  Italy  to  be  used  in 
hearings  before  the  industrial  accident  board  for  the  recov- 
ery of  payments  under  the  workmen's  compensation  act  for 
the  death  of  two  persons  for  whose  estates  he  was  adminis- 
trator. The  petition  was  granted  in  the  trial  court,  and  the 
insuring  company  concerned  took  exceptions  thereto  and 
appealed  the  case,  the  appeal  resulting  in  the  action  of  the 
court  below  being  reversed. 

Speaking  of  the  uses  of  letters  rogatory,  and  the  power 
of  a  court  to  issue  the  same,  Judge  Rugg  said : 

"Letters  rogatory  as  a  means  of  procuring  the  evidence 
of  witnesses  in  foreign  States  are  not  much  in  use  in  this 
Commonwealth.  The  statutes  make  ample  provision  to  this 
end  by  means  of  depositions.  The  power  to  issue  a  com- 
mission rogatory  in  order  to  prevent  a  failure  of  justice 
is  inherent  in  a  court.  But  it  always  has  been  recognized 
that  such  power  can  be  put  forth  only  in  aid  of  a  cause 
actually  pending  in  the  court,  which  issues  the  letters. 

It  is  not  averred  in  the  application  nor  contended  in 
argument  that  the  proceedings  before  the  industrial  acci- 
dent board  are  pending  in  the  superior  court.  Manifestly 
they  are  not  so  pending.  The  machinery  of  the  workmen's 
compensation  act  does  not  contemplate  the  ascertainment  of 
facts  in  that  court. 

It  is  not  within  the  power  of  a  court,  even  of  general 
jurisdiction,  to  issue  letters  rogatory  to  obtain  testimony 
to  be  used  before  a  tribunal  over  whose  procedure  and  trials 
it  is  given  no  authority  until  the  case  itself  may  be  brought 
before  it  for  review.  Therefore,  it  is  not  within  the  author- 


GENERAL  TOPICS  295 

ity  of  the  superior  court  to  procure  evidence  for  use  before 
a  tribunal  over  whose  proceedings  it  has  no  more  intimate 
supervisory  power  than  it  has  over  the  industrial  accident 
board." 

§  234.  Death  Resulting  From  Injury. 

If  dependents  are  making  claim  for  the  death  of  an 
employee,  the  burden  is  upon  them  to  prove  that  the  death 
resulted  from  the  injury.  In  the  English  case  of  Dunham  v. 
Clare,  2  K.  B.  292,  4  W.  C.  C.  102,  the  court  of  appeal  said : 
"The  only  question  is  whether  the  death  in  fact  resulted 
from  the  injury.  If  death  in  fact  resulted  from  the  injury, 
it  is  not  relevant  to  say  that  death  was  not  the  natural  or 
probable  consequence  thereof.  The  question  whether  death 
resulted  from  an  injury  resolves  itself  into  an  inquiry  into 
the  chain  of  causation.  If  the  chain  of  causation  is  broken 
by  a  novus  actus  interveniens,  so  that  the  old  cause  goes 
and  a  new  one  is  substituted  for  it,  that  is  a  new  act  which 
gives  a  fresh  origin  to  the  after  consequences.  ...  If 
no  new  cause,  no  novus  actus  intervenes,  death  has  in  fact 
resulted  from  the  injury." 

§  235.  Proof  of  Liability  for  Compensation. 

Usually,  before  an  employer  is  liable  for  compensation 
the  following  circumstances  must  be  established  by  evidence 
sufficient  to  justify  an  affirmative  finding  of  fact  to  thav 
effect : 

1.  That  the  relation  of  employer  and  employee  existed 
within  the  meaning  of  the  act. 

2.  That  the  statutory  provisions  concerning  acceptance 
or  rejection  of  the  act  have  been  met. 

3.  That  the  employee  suffered  a  personal  injury  by  acci- 
dent or  a  personal  injury  when  the  act  does  not  use  the 
word  accident. 

4.  That  the  injury  or  the  accident  causing  the  injury 
arose  both  "out  of"  and  "in  the  course  of"  the  employment 
or  within  the  coverage  clause  used  by  the  act  in  the  place  of 
the  above  phrase. 


296  MANUAL  OF  COMPENSATION  LAW 

5.  In  case  of  death,  in  addition  to  the  above,  that  the 
death  resulted  from  the  injury  or  was  the  natural  or  prob- 
able consequence  thereof  and  so  resulted  within  the  limita- 
tion period  provided  by  the  act. 

6.  In  case  dependents  are  seeking  compensation  they 
must  show  themselves  to  be  within  the  conditions  where 
dependency  is  presumed  or  else  show  a  degree  of  actual 
dependency. 

§  236.  Agreements,  Settlements  or  Releases. 

Generally  an  employer  and  employee  working  under  an 
act,  or  the  employer's  insurer  and  an  employee,  may  agree 
upon  compensation  so  long  as  the  terms  agreed  upon  are 
within  the  terms  of  the  act.  One  of  the  underlying  pur- 
poses of  this  legislation  is  to  encourage  amicable  settlements 
wherever  possible.  The  employer  must  deal  at  arms'  length 
with  the  employee  and  must  not  take  advantage  of  the  em- 
ployee's ignorance  of  the  law,  Carpenter  v.  Detroit  Forging 
Co.  (Mich.)  157  N.  W.  374.  The  terms  of  the  act  must  be 
followed.  In  re  Pigeon,  216  Mass.  51,  102  N.  E.  932,  Ann. 
Cas.  1915A  737,  4  N.  C.  C.  A.  516 ;  In  re  Cripps,  216  Mass. 
586,  104  N.  E.  565,  Ann.  Cas.  1915B  828 ;  Barry  v.  Bay  State 
Ry.  Co.,  222  Mass.  366,  110  N.  E.  1031.  Generally  an  agree- 
ment to  settle  amicably  made  in  good  faith,  without  fraud 
or  misrepresentation,  will  be  upheld.  But  many  of  the 
acts  provide  that  no  settlement  is  binding  or  final  until 
filed  with  the  board  or  court  for  approval  and  approved. 
Such  provisions  have  been  approved  by  the  courts,  State  ex 
rel.,  Duluth  Diamond  Drilling  Co.  v.  Dist.  Court,  129  Minn. 
423,  152  N.  W.  838,  9  N.  C.  C.  A.  1119.  An  employer  can 
make  voluntary  payments  of  compensation  without  a  formal 
agreement,  and,  can  at  his  own  risk,  make  agreements  with- 
out filing  them  for  approval  where  this  is  required,  but  in 
such  a  case  the  employer's  liability  is  not  discharged  until 
the  statute  of  limitation  has  barred  the  employee's  right  to 
make  claim,  and  usually  even  the  statute  of  limitation  would 


GENERAL  TOPICS  297 

not  run  against  the  employee  if  a  fraud  had  been  practiced 
upon  him  in  the  making  of  the  settlement. 

Generally  when  the  agreement  is  approved  by  the  board 
or  court  it  becomes  the  award  or  judgment  as  the  case  may 
be,  and  is  enforceable  as  other  awards  or  judgments  are. 
Spooner  v.  P.  D.  Beckwith's  Estate,  183  Mich.  323,  149 
N.  W.  971. 

A  great  many  of  the  statutes  provide  specifically  that 
where  there  is  a  showing  of  fraud,  mistake  or  change  in 
conditions  a  previous  award  may  be  reviewed  and  set  aside. 

For  note  on  agreements  between  employer  and  employee, 
see  7  N.  C.  C.  A.  798-813. 

§237.  Releases. 

Generally  speaking  a  release  in  full  given  to  the  em- 
ployer, by  the  employee,  with  full  knowledge  of  his  rights, 
will  bar  a  further  claim  for  that  injury. 

A  release  by  a  widow  does  not  bar  the  claims  of  de- 
pendent children  of  a  deceased  employee  under  the  New 
Jersey  Act,  West  Jersey  Trust  Co.  v.  Philadelphia  &  R.  Ry. 
Co.,  88  N.  J.  Law  102,  95  Atl.  753. 

In  Massachusetts  it  has  been  held  that  the  employee's 
settlement  with  a  third  person  for  injuries  caused  by  him 
cannot  defeat  the  widow's  claim  under  the  act  when  he 
subsequently  dies  of  those  injuries.  In  re  Cripp,  216  Mass. 
586,  104  N.  E.  565,  Ann.  Gas.  1915B  828. 

And  in  Wisconsin  a  release  from  an  employee  before 
death,  to  his  employer,  cannot  bar  his  widow's  claim  under 
the  act  as  a  dependent  when  he  dies  of  those  injuries.  Mil- 
waukee Coke  &  Gas  Co.  v.  Ind.  Comm.  of  Wis.,  160  Wis. 
247,  151  N.  W.  245. 

An  employee  who  agreed  to  a  settlement  for  partial  dis- 
ability on  arbitration  later  claimed  total  disability  before 
the  board  on  appeal.  It  was  held  that  he  was  not  precluded 
from  making  such  a  claim.  Duprey  v.  Maryland  Casualty 
Co.,  219  Mass.  189,  106  N.  E.  686. 

An  agreement  between  an  employee  and  the  employer's 


298  MANUAL  OF  COMPENSATION  LAW 

insurer  for  compensation  for  the  loss  of  three  fingers,  al- 
though approved  by  the  industrial  board,  does  not  bar 
an  award  by  the  board  for  injury  rendering  the  hand  per- 
manently incapable  of  use.  Lemieux  v.  Contr.  Mutual  Lia. 
Ins.  Co.,  222  Mass.  346,  111  N.  E.  782. 

A  settlement  between  an  employer  and  employee  releas- 
ing the  employer  from  all  claims  on  account  of  the  injury 
does  not  bar  the  employee  from  suing  the  physicians  who 
treated  him  for  malpractice.  Viita  v.  Dolan,  155  N.  W.  1077 
(Minn.). 

Where  an  attorney  consented  to  an  award  made  by  the 
New  York  commission,  it  was  held  that  the  award  should 
stand,  although  the  employer  and  his  insurer  claimed  that 
the  attorney  had  exceeded  his  authority  in  agreeing  to  the 
award.  Cunningham  v.  Buffalo  Copper  &  Brass  Rolling 
Mills,  155  N.  Y.  Supp.  797. 

A  proceeding  to  set  aside  confirmation  of  compromise 
under  Sta,tute  1915,  Section  2394-15,  within  one  year  held 
valid  in  spite  of  Section  2394-19,  requiring  appeals  from 
boards  to  be  taken  within  twenty  days.  Menominee  Bay 
Shore  Lumber  Co.  v.  Ind.  Comm.  of  Wis.,  156  N.  W.  151. 

A  release  under  the  act  by  a  guardian  of  a  minor  does 
not  bar  an  action  for  damages  where  the  minor  was  illegally 
employed.  Stetz  v.  F.  Mayer  Boot  &  Shoe  Co.  (Wis.),  156 
N.  W.  971. 

A  release  given  by  the  employee  to  his  employer  will 
not  discharge  the  liability  of  a  third  person  whose  negli- 
gence caused  the  injury.  Jacowicz  v.  Delaware,  L.  &  W. 
Ry.  Co.,  87  N.  J.  L.  273,  92  Atl.  946,  Ann.  Cas.  1916B  1222. 

§  238.  Failure    to    Agree    Must    Precede    Application    for 
Hearing. 

Generally  the  employer  and  the  employee  must  show 
that  they  are  unable  to  agree  on  compensation  before  the 
board  or  court  will  adjust  their  differences. 

It  was  said  in  State  Ex  rel  Duluth  Diamond  Drilling  Co. 
v.  Dist.  Ct.,  129  Minn.  423,  152  N.  W.  838,  9  N.  C.  C.  A. 


GENERAL  TOPICS  299 

1123,  "Either  party  may  take  the  initiative,  but,  if  neither 
will  do  so,  there  is  a  'failure  to  agree  upon  a  claim  for  com- 
pensation' within  the  meaning  of  the  statute.  The  statute 
contemplates  that  the  court  shall  supervise  and  control  all 
matters  and  proceedings  arising  under  the  act.  In  case  the 
parties  effect  an  amicable  settlement,  such  settlement  must 
be  presented  to  the  court,  and  be  approved  by  him  as  in 
accordance  with  the  act,  before  it  becomes  valid  and  bind- 
ing ;  in  case  they  become  involved  in  a  dispute  over,  or  fail 
to  agree  upon  the  terms  of  settlement,  either  party  may  call 
upon  the  court  to  hear  and  determine  the  matter.  The  court 
has  jurisdiction  over  all  cases  arising  under  the  act — both 
those  in  which  the  parties  agree,  and  those  in  which  they  do 
not  agree — not  merely  those  in  which  one  party  makes  de- 
mands to  which  the  other  refuses  to  accede." 

§  239.  Lump  Sum  Settlements. 

The  acts,  almost  without  exception,  allow  payments  of 
compensation,  under  certain  conditions,  to  be  commuted  to 
a  lump  sum.  Usually,  however,  no  lump  sum  settlement 
can  be  made  unless  the  agreement  of  the  employer  and  the 
claimant  to  that  effect  is  submitted  for  approval  to  a  court 
or  administrative  board.  The  provisions  of  the  act  under 
consideration  must  be  considered  to  determine  the  condi- 
tions under  which  such  a  settlement  can  be  made. 

One  of  the  purposes  of  the  acts  is  to  provide  a  regular 
income  for  the  support  of  the  family  of  a  workman  who 
has  been  incapacitated  by  accident  in  the  employment  and 
to  protect  him  and  his  family  against  the  squandering  of 
money  which  would  in  a  majority  of  cases  result  without 
this  safeguard.  On  the  other  hand,  there  may  be  instances 
when  it  will  be  to  the  advantage  of  all  concerned  to  commute 
payments. 

Whether  or  not  it  is  advisable  to  make  such  a  payment  is 
a  question  of  fact,  and  it  has  been  held  in  England  that 
the  amount  of  the  lump  sum  to  be  paid  is  also  a  question 
of  fact.  Stavely  Coal  &  I.  Co.  v.  Elson,  5  B.  W.  C.  C.  301 ; 


300  MANUAL  OF  COMPENSATION  LAW 

Pattinson  v.  Stevenson,  2  W.  C.  C.  156;  Grant  v.  Conroy, 
6  W.  C.  C.  153,  all  cited  in  L.  R.  A.  1916  A  (note)  173.  The 
employer  is  usually  allowed  a  discount  upon  the  total  sum 
of  probable  future  payments.  Upon  the  payment  of  the 
lump  sum,  all  liability  under  the  act  for  the  accident  and 
injuries  concerned  is  discharged. 

Under  the  Kentucky  Act  compensation  can,  except  in 
the  case  of  alien  dependents  (see  section  22  of  the  act), 
under  no  conditions  be  commuted  to  a  lump  sum  payment 
until  after  it  has  been  paid  for  six  months  or  more,  and 
then  only  on  order  of  the  board  after  application  of  either 
party,  the  other  having  been  given  proper  notice  (see  section 
23  of  the  act).  After  a  hearing  it  is  for  the  board  to  deter- 
mine whether  on  all  the  facts  a  lump  sum  payment  should 
be  made. 

Under  the  Kansas  Act,  in  the  case  of  McCrackin  v.  Mis- 
souri Valley  Bridge  &  Iron  Co.,  96  Kan.  353,  150  Pac.  832, 
George  M.  McCracken  was  a  common  laborer  in  building  a 
bridge  and  was  in  the  employ  of  the  company  named.  On 
December  29,  1914,  he  was  killed  in  the  course  of  his  em- 
ployment. Employer  and  employee  were  subject  to  the  pro- 
visions of  the  workmen's  compensation  act.  His  wages  were 
25  cents  per  hour  and  he  worked  eight  hours  per  day.  Ellen 
McCracken,  the  mqther  and  sole  heir  of  the  employee,  pro- 
ceeded against  the  company  for  compensation  and  procured 
an  award  of  a  lump  sum  of  $1,872,  which  was  the  amount 
of  the  earnings  of  the  employee  for  three  years  at  the  rate 
of  $2  per  day. 

The  court  said:  "It  is  said  that  judgment  should  not 
have  been  rendered  in  a  lump  sum,  but  that  the  plaintiff 
should  have  been  awarded  periodical  payments  according 
to  her  necessities,  so  that,  in  case  of  her  death,  any  unpaid 
balance  would  be  saved  to  the  defendant.  The  statute  leaves 
the  character  of  the  judgment  to  the  discretion  of  the  trial 
court. 

'The  judgment  in  the  action,  if  in  favor  of  the  plaintiff, 
shall  be  for  a  lump  sum  equal  to  the  amount  of  the  payments 


GENERAL  TOPICS  301 

then  due  and  prospectively  due  under  this  act,  with  interest 
on  the  payments  overdue,  or,  in  the  discretion  of  the  trial 
judge,  for  periodical  payments  as  in  an  award.'  (Laws 
1911,  ch.  218,  sec.  36.) 

In  this  case  there  is  no  possible  hope  for  improvement 
like  restoration  of  earning  capacity  to  an  injured  workman. 
The  son  is  dead.  The  mother  was  entirely  dependent  upon 
his  earnings  for  her  own  continued  existence,  independent 
of  charity.  She  is  utterly  destitute.  She  has  no  income  or 
sources  of  income  of  her  own.  She  is  physically  unable  to 
earn  her  own  living,  and  she  is  62  years  old.  The  statute 
gave  her  $1,872.  With  this  sum  she  must  establish  herself 
according  to  her  helplessness,  and  then  employ  the  remain- 
der so  that  it  may  last  to  the  end  of  her  days,  for  she  will 
never  have  any  more.  Probably  the  plaintiff  can  not  attain 
her  life  expectancy,  and  the  insurance  company  wants  this 
judgment  doled  out  to  her  in  installments  'as  her  necessities 
require'  so  that,  should  she  die  soon,  part  of  the  judgment 
will  not  have  to  be  paid. 

The  case  was  a  typical  one  for  the  substantially  auto- 
matic operation  of  the  workmen's  compensation  law,  and 
the  bridge  company  was  anxious  to  make  compensation  at 
once  to  the  plaintiff  for  the  loss  of  her  sole  means  of  sup- 
port. But  the  insurance  company  informed  the  defendant 
that  liability  should  be  established  in  the  court  of  last  resort 
or  the  indemnity  the  defendant  had  purchased  would  not 
be  paid.  So  an  appeal  had  to  be  taken." 

In  New  York  Shipbuilding  Co.  v.  Buchannan,  84  N.  J. 
Law  543,  87  Atl.  86,  this  subject  was  treated.  It  is  pro- 
vided by  the  New  Jersey  compensation  law  of  1911  that, 
in  the  interests  of  justice,  payments  awarded  may  be  com- 
muted to  lump  sum  payments.  It  is  also  provided  that  the 
trial  judge  who  makes  the  original  determination  shall  set 
forth  in  this  determination  a  statement  of  the  facts  de- 
termined by  him.  A  lump  sum  award  had  been  made  in 
the  court  of  common  pleas  of  Camden  county,  and  the 
company  liable  therefor  brought  the  case  to  the  supreme 


302  MANUAL  OF  COMPENSATION  LAW 

court  on  certiorari,  the  judgment  of  .the  court  below  being 
reversed.  The  grounds  of  the  reversal  were  that  the  record 
of  the  case  was  not  sufficient  to  give  the  reviewing  court 
the  necessary  facts  for  determining  the  propriety  of  the 
commutation  to  a  lump  sum  payment,  so  that  the  award  of 
a  lump  sum  was  without  legal  support.  The  opinion  con- 
cludes : 

"The  judgment  will  be  reversed  and  the  record  remitted 
to  the  common  pleas  for  an  ascertainment  by  said  court, 
based  on  facts  found  from  legal  evidence,  of  the  propriety 
or  otherwise  of  commuting  the  weekly  payments  to  a  lump 
sum." 

Under  the  same  law  in  the  case  of  Mockett  v.  Ashton,  84 
N.  J.  Law  452,  90  Atl.  127,  4  N.  C.  C.  A.  862,  the  court  said : 
"The  judge  found  that  .the  petitioner's  eyesight  was  affected 
about  one-third ;  that  he  had  distressing  pains  in  his  head, 
and  his  nervous  system  was  much  below  par;  that  his  dis- 
ability was  partial  in  character  and  permanent  in  quality. 
He,  therefore,  decided  to  commute  petitioner's  compensation 
to  $1,000.  Since  the  petitioner  claims  the  benefit  of  the 
statute,  the  statute  must  be  our  guide.  The  schedule  con- 
tained in  the  statute  does  not  provide  specifically  for  the 
injuries  involved  in  this  case.  The  compensation,  therefore, 
must  bear  such  relation  to  the  amounts  stated  in  the  sched- 
ule as  the  disabilities  bear  to  those  produced  by  the  injuries 
named  in  the  schedule.  We  are  not  informed  what  sum 
per  week  the  trial  judge  thought  justified  under  this  statute, 
nor  how  he  reached  his  result.  The  statute  provides  that 
the  amounts  payable  periodically  as  compensation  may  be 
commuted  to  a  lump  sum  provided  the  same  be  in  the 
interest  of  justice.  We  can  not  pass  upon  the  justice  of  the 
result  reached  by  the  trial  judge  unless  we  know  the  sum 
payable  periodically,  the  method  by  which  he  reached  his 
result,  and  the  reasons  that  induced  him  to  commute  the 
periodical  payments  into  a  lump  sum.  Long  v.  Bergen  Com- 
mon Pleas,  84  N.  J.  Law,  117,  86  Atl.  529.  The  case  does  not 
even  show  that  he  ever  determined,  as  the  statute  requires, 


GENERAL  TOPICS  303 

the  relation  borne  by  the  petitioner's  disabilities  to  .those 
produced  by  the  injuries  named  in  the  schedule,  nor  that  he 
even  determined  the  amount  of  the  periodical  payments 
before  commuting  them.  It  seems  that  he  treated  the  case 
as  if  it  arose  under  the  common  law,  and  awarded,  as  a  jury 
might  have  done  in  an  ordinary  action,  such  sum  as  seemed 
to  him  just." 

Where  the  only  beneficiary  of  an  employee  who  was 
killed  in  his  employment  was  a  woman  58  years  of  age,  and 
in  ill  health,  it  was  held  in  Illinois  that  it  was  improper  for 
the  board  to  allow  a  lump  sum  settlement  as  the  dependent 
might  not  outlive  the  period  of  time  when  the  employer  was 
obligated  to  make  payments  in  installments  under  the  Illi- 
nois Act.  Matecncy  v.  Vierling  Steel  Works,  187  111.  App. 
448. 

Under  the  Nebraska  Act,  after  compensation  has  been 
fixed  by  agreement,  the  parties  may  agree  to  pay  and  accept 
a  lump  sum  in  lieu  of  periodical  payments,  but  the  employer 
cannot  be  compelled  to  pay  nor  the  employee  to  receive  a 
lump  sum.  Where  the  employer  and  employee  have  made 
such  an  agreement  it  will  bind  the  employer's  insurance 
carrier  if  the  agreement  is  reasonable.  Lump  sum  payments 
are  only  allowable  when  it  is  clearly  shown  that  the  con- 
dition of  the  beneficiaries  justifies  the  departure  from  week- 
ly payments.  It  was  also  held  that  the  Nebraska  statute 
does  not  require  six  months  to  elapse  before  an  agreement 
for  a  lump  sum  payment  to  resident  claimants  can  be  made, 
nor  is  it  necessary  to  procure  the  consent  of  the  court  to 
such  an  agreement.  Bailey  v.  U.  S.  Fidelity  &  Guaranty  Co., 
99  Neb.  109,  155  N.  W.  237. 

Under  the  same  act  the  right  to  commute  compensation 
to  lump  sum  payments  depends  on  agreement  of  the  parties 
and  in  certain  specified  cases  only  the  consent  of  the  court 
must  be  obtained.  Pierce  v.  Boyer-Van  Kuran  Lumber  & 
Coal  Co.,  99  Neb.  321,  156  N.  W.  509,  and  the  district  court 
can  not  enter  a  judgment  for  a  lump  sum  settlement  unless 


304  MANUAL  OF  COMPENSATION  LAW 

the  parties  agree.  Johansen  v.  Union  Stockyards  Co.  of 
Omaha,  99  Neb.  328, 156  N.  W.  511. 

Under  the  Minnesota  Act  the  parties  must  agree  on  a 
lump  sum  settlement  and  the  court  cannot  commute  periodi- 
cal payments  against  the  will  of  either  party.  State  ex  rel 
Anseth  v.  District  Court  (Minn.),  158  N.  W.  713. 

For  note  on  lump  sum  payments  under  the  English  Act, 
see  L.  R.  A.  1916A  172-174. 

§  240.  Appeals  in  General. 

An  appeal  to  the  courts  is  usually  allowed,  either  to  the 
employer  or  his  insurer  from  an  order  or  award  of  a  board 
or  commission  with  certain  limitations  as  to  what  may  be 
considered  on  review.  This  is  also  true  where  the  original 
jurisdiction  is  in  an  inferior  court  instead  of  a  board.  The 
acts  are  generally  specific  as  to  procedure  on  appeal  and  it 
is  not  within  the  scope  of  this  work  to  go  exhaustively  into 
the  matter. 

§  241.  Time  Limit  on  Appeal. 

Some  of  the  acts,  in  keeping  with  the  desire  to  avoid 
delays,  provide  a  limit  of  time  within  which  a  petition  for 
review  of  an  order  or  award  must  be  filed. 

This  is  true  under  the  Kentucky  Act  of  1916,  which  pro- 
vides that  the  petition  for  review  must  be  filed  in  "a  circuit 
court  that  would  have  jurisdiction  to  try  an  action  for 
damages  for  said  injuries  if  this  act  had  not  been  passed;" 
and  it  must  be  filed  within  twenty  days  after  the  board 
(see  sections  50  and  51  of  the  act)  has  rendered  a  final 
order  in  the  case.  Unless  this  provision  is  strictly  complied 
with  the  right  of  appeal  to  the  circuit  court,  and  consequent- 
ly to  the  court  of  appeals,  is  lost. 

In  construing  a  similar  section  the  circuit  court  of  Dane 
county,  Wisconsin,  in  Dane  County  v.  Industrial  Comm.  of 
Wis.,  9  N.  C.  C.  A.  906,  said:  "An  examination  of  the 
workmen's  Compensation  act  discloses  a  clear  intent  to  do 
away  with  the  delays  incident  to  the  common  law  method  of 
fixing  compensation  for  injured  employees,  and  to  substi- 


GENERAL  TOPICS  305 

tute  in  its  place  a  proceeding  by  which  compensation  could 
be  fixed  speedily,  in  order  that  the  injured  employee  might 
have  compensation  allowed  while  he  was  under  disability." 
After  touching  on  the  various  sections  of  the  act  relative  to 
procedure,  the  court  continued :  "These  statutes  clearly  evi- 
dence a  legislative  intent  to  expedite  the  entire  proceeding 
to  determine  compensation.  In  harmony  with  that  intent 
it  must  be  held  that  the  legislature  meant  just  what  it  said 
when  it  provided,  that  the  awards  of  the  defendant  com- 
mission 'shall  be  subject  to  review  only  in  the  manner 
.  .  .  following,'  i.  e.,  when  an  action  to  review  such 
award  is  begun  'within  twenty  days  from  the  date  of  the  or- 
der or  award'  (section  2394-19).  This  action,  not  having 
been  begun  within  that  period  of  twenty  days,  the  action 
must  be  dismissed." 

This  time  could  probably  be  extended  by  agreement,  but 
in  view  of  the  fact  that  one  of  the  purposes  of  the  act  is  to 
avoid  delays,  the  court  probably  could  not  grant  an  exten- 
sion over  the  objection  of  either  party. 

§  242.  Review  of  Court  Is  Limited. 

The  review  of  the  court  is  generally  confined  to  certain 
definite  subjects  set  forth  in  the  acts.  The  provision  of 
the  act  in  question  is  the  only  absolute  guide  on  this  sub- 
ject. 

Many  of  the  acts,  for  example,  have  provisions  on  this 
question  similar  to  those  of  the  Kentucky  Act  of  1916, 
which  are  set  out  below. 

Under  that  act  the  review  of  the  court  is  limited  to  the 
determination  whether:  "(1)  The  board  acted  without  or 
in  excess  of  its  powers.  (2)  The  order,  decision  or  award 
was  procured  by  fraud.  (3)  The  order,  decision  or  award 
is  not  in  conformity  to  the  provisions  of  this  act.  (4)  If 
findings  of  fact  are  in  issue,  whether  such  findings  of  fact 
support  the  order,  decision  or  award." 

After  a  hearing,  the  court  may  remand  the  cause  to  the 
board  without  carrying  the  proceedings  to  judgment,  or  it 
can  enter  judgment,  affirming,  modifying  or  setting  aside 


306  MANUAL  OF  COMPENSATION  LAW 

the  award  or  order  of  the  board,  or  remanding  the  cause  for 
further  proceedings  consistent  with  the  court's  directions. 

For  note  on  appeal  and  review  generally  see  L.  R.  A. 
1916A  266-271. 

§  243.  Employer  Insured  in  New  York  State  Fund  Has  No 
Appeal. 

Under  the  New  York  Act  it  seems  that  an  employer 
only  has  the  right  of  appeal  if  he  is  privately  insured.  In 
Crockett  v.  State  Insurance  Fund,  170  App.  Div.  122,  155 
N.  Y.  Supp.  692,  compensation  was  awarded  to  Elizabeth 
K.  Crockett  for  the  death  of  her  husband  while  in  the 
employ  of  the  International  Railway  Co.  The  company 
was  insured  with  the  State  fund,  from  which  the  compensa- 
tion was  payable.  The  employer  appealed,  but  the  appeal 
was  dismissed  on  the  ground  that  when  the  insurance  is 
placed  with  the  State  fund,  absolutely  relieving  the  employer 
from  all  liability,  the  law  gives  the  employer  no  right  to  ap- 
peal. The  possibility  that  an  award  from  the  fund  would 
cause  an  increase  in  the  premium  rates  was  held  to  create 
too  remote  an  interest  to  confer  upon  the  employer  the 
right  to  appeal.  An  appeal  from  this  judgment  was  taken 
to  the  court  of  appeals. 

§  244.  Insurer  Cannot  Appeal  on  Distribution  of  Payments 
Alone. 

In  re  Janes,  217  Mass.  192,  104  N.  E.  556,  4  N.  C.  C.  A. 
552,  John  C.  Janes,  the  employee,  died  as  a  result  of  injuries 
which  arose  out  of  and  in  the  course  of  his  employment. 
Janes  was  a  widower.  The  industrial  accident  board  found 
that  his  two  minor  children  were  living  with  him  at  the  time 
of  the  injury  and  were  wholly  dependent.  One  child  died 
about  a  week  after  the  father's  death.  The  decree  of  the 
superior  court  was  to  the  effect  that  the  sum  payable  as 
compensation  should  be  divided  between  the  guardian  of 
the  surviving  child  and  the  administrator  of  the  deceased 
child.  The  guardian  of  the  living  child  did  not  appeal  from 
this  decision,  but  .the  insurer  did.  The  court  decided  that 


GENERAL  TOPICS  307 

the  insurer  had  no  right  of  appeal  in  the  matter  of  the  dis- 
tribution of  the  compensation,  the  amount  being  the  same 
in  any  case.  This  ruling  was  said  not  to  intimate  an  opinion 
as  .to  the  soundness  in  law  of  the  decree  sought  to  be  called 
in  question. 

§  245.  Injuries  Caused  by  Third  Persons. 

The  exact  wording  of  the  act  in  question  should,  of 
course,  first  be  consulted  on  this  as  well  as  all  other  ques- 
tions arising  under  the  acts.  While  some  of  the  acts  require 
an  absolute  election  whether  to  sue  the  third  person  or 
collect  compensation,  and,  while  others  grant  some  of  the 
rights  as  set  out  below,  withholding  some,  the  general  effect 
of  the  majority  of  the  provisions  in  regard  to  this  subject 
may  be  stated  as  follows :  Whenever  an  injury  occurs  to  an 
employee  for  which  some  third  person  is  legally  liable,  but 
which  was  at  the  same  time  an  accident  or  injury  arising 
out  of  and  in  the  course  of  employment  or  one  covered  by 
the  act,  the  injured  employee  can  either  claim  compensation 
from  his  employer  or  proceed  at  law  against  the  person 
causing  the  injury,  at  his  option,  or  he  may  do  both.  But 
he  can  not  both  collect  compensation  and  damages.  In 
other  words,  if  he  did  not  recover  as  great  a  sum  in  damages 
as  the  act  entitles  him  to,  his  employer  would  receive  credit 
for  the  sum  he  did  recover  and  he  could  make  claim  against 
the  employer  for  the  balance,  but  if  the  damages  awarded 
were  greater  than  the  compensation,  the  employee  would 
be  entitled  to  the  excess.  However,  if  the  injured  man  both 
claimed  under  the  act  and  sued  at  law  the  employer  would 
have  the  right  to  ask  to  be  made  a  party  to  the  suit  for 
damages  and  set  up  his  claim  there  for  the  compensation 
for  which  he  is  liable  under  the  act,  as  against  any  verdict 
that  might  be  rendered.  If  the  employee  elects  to  receive 
compensation  without  bringing  suit,  the  employer  may  sue 
the  person  causing  the  injury  for  indemnity. 

The  New  York  law  does  not  require  the  employee  to  give 
notice  of  election  to  sue  the  third  party  whose  negligence 


308  MANUAL  OF  COMPENSATION  LAW 

caused  the  injury,  as  the  common  law  right  of  an  employee 
to  sue  the  third  person  is  not  affected  by  the  workmen's 
compensation  law.  Lester  v.  Otis  Elevator  Co.,  169  App. 
Div.  613,  155  N.  Y.  S.  524. 

A  workman  whose  master  had  complied  with  the  New 
York  law,  with  which  he  had  also  complied,  was  held  en- 
titled to  sue  a  third  person  causing  personal  injuries,  with- 
out any  definite  election.  Lester  v.  Otis  Elevator  Co.,  153 
N.  Y.  S.  1058,  90  Misc.  Rep.  649,  affirmed,  155  N.  Y.  S.  524. 

§  246.  Effect  Where  Both  Employer  and  Third  Person  Have 
Elected  Act. 

In  Smale  v.  Wrought  Washer  Co.,  160  Wis.  331,  151  N. 
W.  803,  Smale  recovered  a  verdict  of  $12,000  against  the 
Wrought  Washer  Co.,  a  .third  person,  through  whose  negli- 
gence he  was  injured.  The  court  said: 

"It  appeared  that  both  the  Andrae  Company  (plaintiff's 
employer)  and  the  defendant  had,  prior  to  this  accident, 
elected  to  become  subject  to  the  provisions  of  the  work- 
men's compensation  act  (sections  2394-1  to  2394-31,  Stats. 
Wis.),  and  the  defendant's  first  claim  is  that  on  account  of 
this  fact  the  defendant  is  not  liable  to  an  action  at  law.  The 
claim  cannot  be  sustained.  The  purpose  and  effect  of  the 
workmen's  compensation  act  is  to  control  and  regulate  the 
relations  between  an  employer  and  his  employees.  As  be- 
tween them  the  remedies  there  provided  are  exclusive  when 
both  are  under  the  act  at  the  time  of  the  accident.  The 
law  does  not  attempt  in  any  way  to  abridge  the  remedies 
which  an  employee  of  one  person  may  have  at  law  against 
a  third  person  for  a  tort  which  such  third  person  commits 
against  him,  unless  it  be  a  case  such  as  is  provided  for  by 
section  2394-6,  Stats.  1913  (chapter  599,  Laws  1913).  The 
present  case  does  not  come  within  that  section  and  hence  it 
is  unnecessary  to  consider  its  effect." 

§  247.  Rights  and  Remedies  of  Employer  Against  Third 
Person. 

Whenever  the  employer  shall  have  paid  compensation, 


GENERAL  TOPICS  309 

or  have  become  liable  therefore  by  award  of  the  board  or 
court,  he  can  sue  the  third  person,  legally  liable  for  the  in- 
jury, for  indemnity,  but  if  he  collects  a  greater  amount 
than  the  act  makes  him  liable  for  to  this  employee  the  excess 
must  usually  be  turned  over  to  the  employee.  This  same 
right  exists  in  favor  of  an  insurance  company  underwriting 
the  employer's  risk.  Turnquist  v.  Hannon,  219  Mass.  560, 
107  N.  E.  433.  But  where  the  negligence  of  his  own  em- 
ployees helped  to  cause  the  injury  as  well  as  the  negligence 
of  a  third  person  it  has  been  held  that  the  employer  could 
not  maintain  an  action  for  indemnity.  Cory  v.  France,  F. 
&  Co.,  1  K.  B.  114  (Eng.),  L.  R.  A.  1916A  (note)  362. 

In  Wisconsin  it  has  been  held  that  where  the  employer's 
right  to  sue  a  third  person  was  established,  the  employer 
could  assign  it  to  another  who  could  bring  the  action.  Mc- 
Garvey  v.  Independent  Oil  &  Grease  Co.,  156  Wis.  580,  146 
N.  W.  895,  5  N.  C.  C.  A.  803. 

Where  an  insurance  carrier  pays  a  claim  for  injuries 
caused  by  third  person  and  becomes  the  assignee  to  the 
cause  of  action  of  the  workman,  it  would  only  be  indemni- 
fied for  the  amount  actually  paid  out  and  cannot  recover 
anything  in  excess  of  that.  U.  S.  Fidelity  &  Guaranty  Co. 
v.  N.  Y.  Railways  Co.,  156  N.  Y.  S.  615,  93  Misc.  Rep.  118. 

Where  an  injured  employee  had  received  compensation 
from  his  immediate  employer  which  subrogated  the  em- 
ployer or  insurer  to  his  right  of  action  against  a  third  per- 
son, the  allegation  and  consequent  subrogation  may  be  set 
up  by  the  third  person  in  an  action  by  employee.  Miller  v. 
N.  Y.  Railways  Co.,  157  N.  Y.  S.  200,  171  App.  Div.  316. 

In  Turnquist  v.  Hannon  (supra)  it  was  said:  "This  ac- 
tion is  brought  in  her  (the  adm'x.)  name  by  the  insurance 
company  for  its  benefit  under  section  15  of  part  3  of  the 
act,  which  is  in  these  words: 

'Sec.  15.  Where  the  injury  for  which  compensation  is 
payable  under  this  act  was  caused  under  circumstances  cre- 
ating a  legal  liability  in  some  person  other  than  the  sub- 
scriber to  pay  damages  in  respect  thereof,  the  employee  may 


810  MANUAL  OF  COMPENSATION  LAW 

at  his  option  proceed  either  at  law  against  that  person  to 
recover  damages  or  against  the  association  for  compensation 
under  this  act,  but  not  against  both,  and  if  compensation  be 
paid  under  this  act,  the  association  may  enforce  in  the 
name  of  the  employee,  or  in  its  own  name  and  for  its  own 
benefit,  the  liability  of  such  other  person.' 

If  the  injury  in  the  case  at  bar  had  not  resulted  in  his 
death,  two  alternatives  would  have  been  open  to  the  em- 
ployee under  the  terms  of  part  3,  section  15,  of  the  act: 
(1)  To  bring  an  action  at  law  against  the  defendant  for 
the  injury  done  him,  or  (2)  to  proceed  for  compensation 
under  the  workmen's  compensation  act.  But  he  could  not 
have  pursued  both  remedies.  He  would  have  been  bound  to 
elect  between  the  two.  .  .  . 

The  act  by  part  3,  section  15,  does  not  import  into  its 
terms  the  equitable  principle  of  subrogation.  It  simply 
provides  that  where  the  insurer  has  afforded  the  prompt 
relief  to  the  dependents  of  a  deceased  employee  which  the 
act  requires,  it  may  enforce  for  its  own  benefit  the  rights 
against  tortious  third  persons  causing  his  injury  which 
would  otherwise  have  been  available  to  the  employee  or  his 
representatives. 

This  right  is  not  dependent  upon  reimbursement  or  sub- 
rogation. It  puts  upon  the  insurer  the  burden  of  undertak- 
ing what  in  many  instances  might  be  litigation  uncertain 
by  reason  of  disputed  facts  or  novel  law,  but  gives  it  all  the 
advantage  of  the  right  of  action  which  in  substance  is  as- 
signed to  it.  Hence,  it  is  an  immaterial  circumstance  how 
much  it  may  have  paid  or  be  liable  to  pay  under  the  act. 

Inasmuch  as  the  liability  established  by  the  death  statute 
is  in  substance  a  penalty  or  fine,  the  Commonwealth, 
through  its  legislature,  can  make  such  fine  payable  to  any 
person  equitably  entitled  to  it.  Where  the  legislature  pro- 
vides that  the  one  who  has  afforded  prompt  relief  to  the  de- 
pendents of  the  deceased  may  receive  the  penalty,  there  is  no 
legal  reason  why  it  should  not  be  enforced." 


GENERAL  TOPICS  31 1 

§  248.  Effect  of  Settlement  by  Employee  With  Third  Per- 
sons. 

There  is  usually  no  provision  as  to  what  the  effect  shall 
be  when  an  employee  having  a  claim  both  against  the 
employer  for  compensation  and  a  third  person  for  damages, 
settles  the  claim  with  the  third  person.  The  employer  is 
made  liable,  under  the  acts  generally,  for  the  benefit  of  the 
employee,  for  injuries  caused  by  third  persons,  but  the  em- 
ployer has  the  right  to  seek  reimbursement  for  the  amount 
paid  out  from  the  person  who  is  legally  liable  for  the  injury. 
Therefore,  when  an  employee  settles  with  such  third  person 
without  the  employer's  consent  he  is  depriving  the  employer 
of  the  right  given  him  by  the  act  to  seek  full  indemnity 
for  the  compensation  for  which  the  law  makes  him  liable. 
It  has,  therefore,  been  held  that  the  acceptance  of  such  a 
settlement  with  a  third  person  whose  negligence  caused  the 
injury  is  a  bar  to  a  claim  for  compensation  against  the  em- 
ployer. Cripps'  Case,  216  Mass.  586,  104  N.  E.  565,  Ann. 
Cas.  1915B  828;  Page  v.  Burtwell,  2  K.  B.  (Eng.)  758,  L.  R. 
A.  1916A  (note)  361. 

In  the  Cripps  Case  (supra)  a  driver  of  a  truck  was 
injured  by  the  negligence  of  a  street  car  company.  It  was 
held  that  he  lost  his  right  to  compensation  by  settling  with 
the  company,  although  he  had  not  brought  suit  against  them. 
But  in  the  same  case  it  was  held  when  he  later  died  of 
these  injuries  that  his  widow  was  not  by  his  settlement  de- 
prived of  her  right  to  compensation.  The  settlement  is  a  bar 
although  in  making  it  the  workman  expressly  reserved  his 
right  to  compensation.  Mulligan  v.  Dick,  41  Scot.  L.  R.  77 ; 
Murray  v.  North  British  R.  Co.,  41  Scot.  L.  R.  383,  L.  R.  A. 
1916A  (note)  361. 

For  further  discussion  of  injuries  caused  by  third  per- 
sons, see  L.  R.  A.  1916A  (note),  (Eng.  Cases)  101,  (Ameri- 
can Cases)  225.  See  also  L.  R.  A.  1916A  (note)  360,  5  N. 
C.  C.  A.  (note)  524-528,  10  N.  C.  C.  A.  939-945. 


312  MANUAL  OF  COMPENSATION  LAW 

§  249.  Burial  Expenses. 

Practically  every  workmen's  compensation  law  allows 
burial  expenses,  within  certain  limits,  in  addition  to  medi- 
cal expenses  and  compensation.  Usually  it  is  only  neces- 
sary to  prove  that  the  employer  and  employee  were  under 
the  act  and  that  the  death  resulted  proximately  from  an 
accident  or  injury  arising  out  of  and  in  the  course  of  th6 
employment.  Stephens  v.  Clark,  2  Cal.  Ind.  Ace.  Comm., 
135,  11  N.  C.  C.  A.  (note)  716.  Some  acts  only  allow  burial 
expenses  where  there  are  no  dependents  surviving.  Pelham 
v.  Burstein,  1  Conn.  Comp.  Dec.  49.  This  was  formerly  the 
case  in  New  Jersey,  Taylor  v.  Seabrook,  87  N.  J.  Law  487, 
94  Atl.  399,  11  N.  C.  C.  A.  710,  but  an  amendment  of  1914 
provides  for  burial  expenses  in  all  cases  covered  by  the  act. 
Under  the  New  York  Act  attempt  was  made  by  a  relative  of 
the  deceased  man  to  collect  a  claim  for  services  in  connec- 
tion with  the  funeral,  although  the  claimant  did  not  claim 
reimbursement  for  money  spent.  It  was  held  in  Tirre  v. 
Bush  Terminal  Co.,  172  App.  Div.  386,  158  N.  Y.  Supp.  883, 
that  such  a  claim  was  not  within  the  purview  of  the  act. 
Where  funeral  expenses  within  a  certain  limit  are  a  proper 
charge  it  was  held  in  Michigan  that  the  employer  could  not 
dictate  to  the  family  how  the  details  should  be  arranged  or 
what  should  be  paid  for  a  lot,  carriages,  etc.,  so  long  as 
the  expense  was  reasonable  and  within  the  limit  of  expense 
allowed  by  the  act,  Konkel  v.  Ford  Motor  Co.,  Mich.  Ind. 
Ace.  Bd.  Bui.  (No.  3,  1913)  29,  11  N.  C.  C.  A.  (note)  716. 

Under  the  Kentucky  Act  of  1916  the  employer  must  pay 
burial  expenses  up  to  $75,  medical  expenses,  and  where 
there  are  no  dependents  the  employer  must  pay  in  addition 
a  fixed  sum  of  $100  to  the  personal  representative  of  an 
employee  who  died  from  injuries  covered  by  the  act  with- 
out dependents.  The  provision  for  paying  this  sum  to  the 
personal  representative  in  any  event  was  probably  inserted 
because  of  the  language  in  Ky.  State  Journal  Co.  v.  Work- 
men's Compensation  Board,  161  Ky.  562,  170  S.  W.  1166, 
L.  R.  A.  1916A,  389,  holding  the  1914  act  invalid,  when 


GENERAL  TOPICS  313 

the  court,  in  construing  section  241  of  the  Constitution  of 
the  State  of  Kentucky,  said :  "And  it  is  immaterial,  under 
this  section  of  the  Constitution,  whether  the  money  recov- 
ered goes  to  the  children  or  parents,  or  becomes  part  of  his 
personal  estate.  The  disposition  of  the  money  after  his 
death  can  not  affect  the  right  of  the  personal  representative 
to  recover.  It  may  go  to  his  heirs,  or  it  may  become  a  part 
of  his  personal  estate  and  go  to  his  creditors." 

For  note  on  liability  of  the  employer  for  burial  expenses, 
see  11  N.  C.  C.  A.  710-717. 

§  250.  Deductions  From  Compensation. 

Generally,  if  allowable  at  all,  no  deductions  can  be  made 
from  the  compensation  provided  for  by  the  acts  unless  the 
approval  of  the  board  or  court  is  first  obtained.  The  pay- 
ments  made  or  value  of  supplies  furnished,  for  which  a 
deduction  in  the  amount  payable  as  compensation  is  asked, 
must  be  payment  or  supplies  in  addition  to  those  granted  by 
the  act.  Free  board  and  lodging,  free  house  rent,  and  free 
use  of  land  for  gardening  purposes  might  be  considered  as 
examples  of  this  class  of  extra  payments.  It  has  been  held 
in  England  that  rent  of  a  cottage  belonging  to  the  employer 
and  occupied  by  the  workman,  may  properly  be  deducted 
from  the  amount  of  compensation  awarded  under  an  agree- 
ment between  the  employer  and  employee.  Brown  v.  S.  E. 
&  C.  Ry.  Co.'s  Managing  Committee,  3  B.  W.  C.  C.  428, 
Bradbury's  Work.  Comp.  248. 

If  the  employer  furnished  hospital  treatment  beyond  re- 
quirements of  the  act  and  it  was  clearly  a  benefit  to  the 
workman  that  he  did  so,  payments  made  for  it  might  pos- 
sibly be  approved  by  the  board  as  a  deduction.  This  seems 
to  be  the  principal  announced  in  Suleman  v.  The  Ben  Lo- 
mond, 2  B.  W.  C.  C.  499,  Boyd's  Work.  Comp.,  §  535.  A 
deduction  because  the  workman  had  been  imprisoned  for  a 
crime  was  denied,  but  it  was  ordered  that  a  portion  of  his 
compensation  should  be  paid  for  the  support  of  his  chil- 
dren. Clayton  v.  Dobbs,  2  B.  W.  C.  C.  488,  Boyd's  Work. 


314  MANUAL  OF  COMPENSATION  LAW 

Comp.,  §  536.  It  has  been  held,  that  the  cost  of  explosives 
used  by  a  miner,  although  procured  from  the  employer,  who 
deducts  the  cost  thereof  from  the  miner's  wages  does  not 
represent  a  sum  paid  to  the  miner  to  cover  any  special 
expenses.  McKee  v.  Stein,  3  B.  W.  C.  C.  544,  L.  R.  A.  1916A 
(note)  159. 

In  Barbour  Flax  Spinning  Co.  v.  Hagerty,  85  N.  J.  Law 
407,  89  Atl.  919,  4  N.  C.  C.  A.  586,  it  was  in  evidence  that 
the  petitioner  Hagerty  had  received  the  statutory  weekly 
compensation  for  his  injury  for  a  period  of  fifty-two  weeks, 
for  which  no  credit  had  been  given.  As  to  this  the  court 
said: 

"The  petition  avers  that  it  was  received  from  the  insur- 
ance company  of  the  defendant.  The  admission  at  the  trial 
was  that  it  was  paid  by  the  defendant.  If  that  is  true,  or  if 
the  premium  for  the  insurance  had  been  paid  by  the  de- 
fendant, credit  should  have  been  given.  If,  however,  the 
payment  was  by  virtue  of  insurance  paid  for  by  the  peti- 
tioner, the  defendant  is  entitled  to  no  credit  therefor." 

In  De  Zeng  v.  Pressey,  86  N.  J.  Law  469,  92  Atl.  278, 
the  court  said: 

"Next  it  is  argued  that,  because  the  petitioner  worked 
for  the  prosecutor  for  fifty-five  weeks  at  full  wages,  these 
fifty-five  weeks  should  be  deducted  from  the  sixty  weeks 
for  which  the  award  was  made.  The  answer  is  that  the 
prosecutor  was  under  no  obligation  to  employ  the  petitioner 
at  $20  a  week  or  any  other  sum,  and  that  inasmuch  as  he 
chose  to  do  so  without  any  understanding,  express  or  im- 
plied, that  petitioner  was  not  worth  those  wages,  or  that 
part  of  them  should  be  treated  as  moneys  paid  under  the 
compensation  act,  he  must  be  presumed  to  have  paid  the 
money  as  wages  and  because  he  thought  the  petitioner  was 
worth  that  amount." 

It  has  been  held  under  the  English  Act  that  deductions 
for  previous  overpayments  of  compensation  were  improper. 
Flyn  v.  Burgess  (Eng.),  W.  C.  &  Ins.  Rep.  238;  Hosegood  & 


GENERAL  TOPICS  315 

Sons  v.  Wilson   (Eng.),  4  B.  W.  C.  C.  30;  Doyle  v.  Cork 
Steam  Packet  Co.,  5  B.  W.  C.  C.  350. 

§  251.  Contracting  Out. 

Almost  all  of  the  acts  now  in  force  have  a  provision 
making  any  agreement  by  the  employee  which  waives  his 
right  to  compensation  void.  Such  a  provision  in  the  New 
Jersey  Act  was  held  not  to  apply  where  an  accident  happen- 
ed before  the  act  was  passed.  Blackford  v.  Green,  87  N.  J. 
Law  359,  94  Atl.  401. 

This  provision  is  for  the  protection  of  the  employee. 
It  prohibits  and  makes  void  any  agreement  of  any  kind 
between  the  employer  and  employee  by  which  the  employer 
is  relieved  of  any  of  the  obligations  of  this  act,  except  as 
provided  under  the  conditions  of  the  act.  The  employer 
must  pay  the  full  compensation  to  which  this  law  entitles 
the  injured  workman.  If  the  employer  by  agreement  with 
the  employee  settles  for  less  than  he  is  entitled  to,  credit  for 
this  sum  should  be  given  in  a  subsequent  award  for  the  full 
amount  due.  Neither  can  the  employer  make  any  rule  for 
the  conduct  of  his  business,  the  effect  of  which  would  be 
to  lessen  his  liability. 

The  employer  can  not  lessen  his  obligations  and  the  em- 
ployee can  not  waive  his  rights  under  the  statute  by  agree- 
ment. Such  agreements  have  been  held  void  as  against 
public  policy  in  addition  to  being  prohibited  by  the  act. 
See  Powley  v.  Vivian  &  Co.,  169  App.  Div.  170,  154  N.  Y. 
Supp.  426. 

In  opinion  of  the  justices,  209  Mass.  607,  1  N.  C.  C.  A. 
557,  the  court  said:  "It  is  within  the  power  of  the  legis- 
lature to  provide  that  no  agreement  by  an  employee  to 
waive  his  right  to  compensation  under  the  act  shall  be 
valid." 

§  252.  Right  of  Compensation  as  Prior  Lien. 

Under  most  acts  claims  for  compensation  have  the  same 
preference  or  priority  for  full  and  complete  payment  against 
the  assets  of  the  employer  as  is  allowed  by  statute  for  un- 


316  MANUAL  OF  COMPENSATION  LAW 

paid  wages.  In  Kentucky,  for  example,  the  lien  for  wages 
mentioned  is  created  by  Carroll's  Ky.  Statutes,  §  2487  (act 
of  1914)  against  "the  property  or  effects  of  any  mine,  rail- 
road, turnpike,  or  canal,  or  other  public  improvement  com- 
pany, or  of  any  owner  or  operator  of  any  rolling  mill,  foun- 
dry, or  other  manufacturing  establishment,  whether  incor- 
porated or  not."  Section  2488  of  Carroll's  Ky.  Statutes 
makes  this  lien  superior  to  "any  mortgage  or  other  incum- 
brance  thereafter  created  and  shall  be  for  the  whole  amount 
due  such  employees  as  such  .  .  .  that  for  wages  com- 
ing due  to  employees  within  six  months  before  the  property 
or  effects  shall  in  any  wise  come  to  be  distributed  among 
creditors,  as  provided  in  section  2487,  the  lien  of  such  em- 
ployees shall  be  superior  to  the  lien  of  any  mortgage  or 
other  incumbrance  theretofore  or  thereafter  created."  The 
lien  for  compensation  would  be  equal  to  the  lien  for  taxes 
given  to  the  State,  county,  city,  town  or  taxing  district  un- 
der Carroll's  Ky.  Statutes,  §4021  (3). 

§  253.  Claims  for  Compensation   Cannot  Be   Assigned  or 
Attached. 

One  of  the  purposes  of  the  compensation  act  is  to  lend 
support  to  the  family  of  a  disabled  or  deceased  workman 
and  therefore  provision  is  generally  made  to  protect  both 
the  workman  and  his  family  by  making  assignments  of 
claims  for  compensation  illegal  and  by  exempting  payments 
of,  or  claims  for,  compensation  from  all  claims  of  creditors. 
Thus  they  can  not  be  garnisheed  or  attached  either  in  the 
hands  of  the  employer  or  his  insurers,  but  must  be  paid  in 
full  direct  to  the  employee  or  his  dependents  or  to  the  person 
entitled  to  receive  them. 

§  254.  Attorney's  Fees. 

Attorney's  fees,  under  the  Michigan  Act,  are  subject  to 
the  approval  of  the  Industrial  Board.  It  was  held  that  the 
Michigan  Act  was  not  unconstitutional  for  that  reason. 
Mackin  v.  Detroit-Timkin  Axle  Co.,  187  Mich.  8,  153  N.  W. 
49. 


GENERAL  TOPICS  317 

It  was  held  in  Missouri  that  attorneys  of  that  State  had 
no  lien  against  a  Kansas  employer  having  elected  the  Kansas 
Workmen's  Compensation  Act  when  this  Kansas  employer 
settled  with  the  employee  under  that  act  after  they  had  no- 
tice of  the  employment  of  the  Missouri  attorneys.  Piatt  v. 
Swift  &  Co.,  188  Mo.  App.  584,  176  S.  W.  434. 

Under  the  Minnesota  Act  no  provision  is  made  for  liens 
of  attorneys'  fees,  but  it  was  held  that  the  court  could 
allow  statutory  costs,  although  designated  in  the  order  as 
attorneys'  fees.  State  v.  District  Court  of  St.  Louis  Co., 
129  Minn.  423,  152  N.  W.  838. 

In  Boyd  v.  Pratt  et  al.  (Wash),  130  Pac.  371,  the  allow- 
ance of  an  attorney's  fee  was  treated :  The  act  in  question 
gives  the  trial  court  authority  to  fix  a  reasonable  attor- 
ney's fee,  and  also  allows  for  an  appeal  "from  the  judg- 
ment of  the  superior  court  as  in  other  civil  cases."  The  su- 
perior court  had  fixed  a  fee  which  the  claimant's  attorney 
urged  should  be  made  more  liberal  in  view  of  the  expense 
and  delay  attending  upon  the  appeal  taken.  This  the  court 
refused  to  allow,  saying: 

"The  only  warrant  in  the  law  for  fixing  an  attorney's 
fee  at  all  is  to  be  found  in  the  statute  just  quoted.  The 
power  to  fix  fees  is  there  limited  to  the  superior  court.  The 
only  rights  that  can  be  claimed  on  appeal  to  this  court  are 
such  as  are  given  by  the  general  appeal  statutes,  the  pro- 
vision fixing  our  right  of  review  being:  'Appeal  shall  lie 
from  the  judgment  of  the  superior  court  as  in  other  civil 
cases.'  We  find  nothing  in  our  appellate  procedure  which 
would  warrant  us  in  allowing  an  attorney's  fee  in  this  or 
similar  cases.  The  motion  for  an  additional  fee  is  denied." 

Under  the  Kentucky  Act  of  1916,  §  59,  an  attorney  can 
not  charge  in  excess  of  15  per  cent,  on  the  first  $1,000  re- 
ceived and  10  per  cent,  on  each  additional  $1,000,  and  upon 
proof  of  solicitation  of  employment  the  board  may  reduce 
the  fee  or  deny  it  altogether. 


318  MANUAL  OF  COMPENSATION  LAW 

§  255.  Reports  of  Accidents  by  Employer. 

The  acts  generally  require  the  employer  to  keep  a  record 
of  all  injuries  and  make  a  report  to  the  board  or  some 
administrative  officer  detailing  the  facts  of  the  accident. 
This  is  usually  required  as  a  check  on  the  employers  and 
also  for  statistical  purposes. 

The  employer's  notice  of  an  accident  is  competent  prima 
facie  evidence  of  the  facts  therein  stated,  but  it  may  be 
contradicted.  First  Nat'l  Bank  of  Milwaukee  v.  Ind.  Comm. 
161  Wis.  526,  154  N.  W.  847 ;  Reck  v.  Whittlesburger,  181 
Mich.  463,  148  N.  W.  247,  Ann.  Cas.  1916C  771. 

§  256.  Deliberate  Intention  to  Produce  Injury. 

The  Kentucky  and  Oregon  acts  and  some  others  use  this 
phrase  in  connection  with  those  acts  of  the  employer  for 
which  he  is  penalized  in  some  way. 

In  Jenkins  v.  Carman  Mfg.  Co.  (Ore.),  155  Pac.  703,  11 
N.  C.  C.  A.  547,  the  court  said : 

"As  to  the  right  of  recovery  under  the  twenty-second 
section  the  allegations  are  somewhat  argumentative  and 
inconsistent,  but,  taken  as  a  whole  and  fairly  construed, 
they  amount  to  this:  That  defendant  knew  the  roll  was 
broken  and  a  menace  and  danger  to  workmen,  and  knowing 
this  fact  carelessly,  recklessly  and  negligently  failed  to  re- 
pair it,  and  required  its  workmen  to  labor  in  its  vicinity  in 
its  defective  condition,  deliberately  intending  to  risk  the 
danger  of  an  injury.  The  deliberate  intent  follows  as  a 
deduction  from  the  allegation  of  knowledge  of  the  danger 
and  the  carelessness,  negligence  and  recklessness  of  defend- 
ant in  not  obviating  it.  In  our  opinion  the  allegation  goes 
no  further  than  to  charge  that  defendant,  with  full  knowl- 
edge of  the  defect,  carelessly,  negligently  and  recklessly 
took  the  risk  of  its  injuring  the  plaintiff.  If  defendant  de- 
liberately intended  to  wound  plaintiff  or  his  fellow-work- 
men and  intentionally  used  this  broken  roll  as  he  (it) 
would  have  used  an  axe  or  a  club  to  produce  the  intended 
injury,  it  is  liable;  otherwise  it  is  not.  A  deliberate  act  is 


GENERAL  TOPICS  319 

one,  the  consequences  of  which  are  weighed  in  the  mind 
beforehand.  It  is  prolonged  premeditation,  and  the  word 
when  used  in  connection  with  an  injury  to  another  denotes 
design  and  malignity  of  heart.  It  has  been  defined  so 
many  times  that  it  is  difficult  to  select  any  one  definition 
which  covers  every  phase  in  which  the  word  is  used,  but 
some  of  the  most  apt  are : 

The  word  'deliberate'  is  derived  from  two  Latin  words, 
which  mean,  literally,  'concerning,'  and  'to  weigh.'  .  .  . 
As  an  adjective  ...  it  means  that  the  manner  of  the 
performance  was  determined  upon  after  examination  and 
reflection — that  the  consequences,  chances  and  means 
weighed,  carefully  considered  and  estimated.'  Craft  v. 
State,  3  Kan.  451. 

'Deliberation  is  prolonged  premeditation.'  State  v.  Spey- 
er,  207  Mo.  540,  106  S.  W.  505,  14  L.  R.  A.  (N.  S.),836. 

'Deliberation  is  that  act  of  the  mind  which  examines  and 
considers  whether  a  contemplated  act  should  or  should  not 
be  done.'  United  States  v.  Kie,  26  Fed.  Gas.  781. 

We  think  by  the  words  'deliberate  intention  to  produce 
the  injury'  that  the  lawmakers  meant  to  imply  that  the 
employer  must  have  determined  to  injure  an  employee  and 
used  some  means  appropriate  to  that  end ;  that  there  must  be 
a  specific  intent  and  not  merely  carelessness  or  negligence, 
however  gross. 

The  judgment  is  affirmed." 

§  257.  Willful  Act  of  Employer. 

Some  of  the  acts  penalize  the  employer  when  the  injury 
resulted  from  the  willful  act  of  the  employer.  The  Ohio 
Act  has  such  a  provision,  which  was  construed  in  the  case 
of  McWeeny  v.  Standard  Boiler  Plate  Co.,  210  Fed.  507,  4 
N.  C.  C.  A.  919,  affirmed  218  Fed.  361,  134  C.  C.  A.  169. 
The  facts  were  as  follows:  John  J.  McWeeny  was  very 
seriously  injured  while  in  the  employ  of  the  defendant  com- 
pany. He  sued  the  company,  in  spite  of  the  fact  that  the 
company  had  complied  with  the  provisions  of  the  workmen's 


320  MANUAL  OF  COMPENSATION  LAW 

compensation  act  of  Ohio,  relying  on  the  provision  of  section 
21-2  of  that  act  that  nothing  in  the  act  shall  affect  the 
civil  liability  of  the  employer  when  the  injury  has  arisen 
from  the  willful  act  of  the  employer  or  any  of  his  agents  or 
servants,  or  from  the  failure  of  any  of  them  to  comply  with 
any  statute  for  the  protection  of  the  life  or  safety  of  em- 
ployees. He  recovered  a  verdict  of  $14,000,  and  the  com- 
pany moved  for  a  new  trial,  which  was  denied.  The  nature 
of  the  willful  act  claimed  by  the  plaintiff,  and  the  view 
taken  by  the  trial  court  as  to  what  constitutes  such  an  act, 
is  shown  in  the  following  extracts  from  the  opinion  of  the 
court: 

"The  plaintiff  and  other  employees  of  the  defendant 
company,  together  with  a  man  named  Fisher,  the  foreman, 
having  charge  of  the  work,  were  engaged  in  erecting  a  large 
sheet-iron  tank  to  be  used  for  the  storage  of  chemicals.  This 
tank  was  composed  of  large  iron  plates  which  were  lifted  in 
position  by  means  of  a  derrick  and  boom  erected  upon  a 
scaffolding  placed  within  this  large  metal  tank.  Shortly 
before  the  accident  occurred,  the  attention  of  Fisher,  the 
foreman,  was  several  times  directed  to  the  fact  that  the 
mast  of  the  derrick  was  leaning  two  feet,  that  one  of  the  guy 
lines  was  weak,  and  several  of  the  men  said  to  him  that  the 
mast  should  be  straightened  and  the  guy  lines  should  be 
tightened  and  replaced.  Fisher  refused  to  do  this,  and,  not- 
withstanding the  fact  that  his  attention  was  called  to  the 
defects  in  this  derrick  several  times  and  that  a  strain  of  a 
ton  load  was  being  placed  upon  the  guy  lines  and  the  derrick, 
the  foreman,  with  an  oath,  directed  McWeeny  and  the  other 
men  to  proceed  with  the  lifting  of  the  heavy  iron  plate. 
They  did  so,  and  while  engaged  in  this  work  the  scaffolding 
and  derrick  collapsed,  injuring  McWeeny  and  several  other 
of  the  men. 

The  evidence  tends  to  show  that  the  foreman  at  the  time 
of  this  unfortunate  occurrence  was  himself  in  a  place  which 
was  of  no  danger  to  him. 


GENERAL  TOPICS  321 

From  an  examination  of  these  sections  [20-1  and  21-2] 
it  is  apparent  that,  where  an  employer  has  complied  with 
the  provisions  of  this  act  in  paying  the  premiums  into  the 
funds  and  in  posting  the  necessary  notices,  the  employee  in 
case  of  injury,  or  his  representative  in  case  of  death,  can  not 
recover  for  negligence  or  the  want  of  ordinary  care,  but 
if  the  injury  results  from  a  willful  act,  or  from  the  viola- 
tion of  a  statute  or  ordinance  or  order  of  any  duly  author- 
ized officer,  which  statute,  ordinance,  or  order  was  enacted 
for  the  protection  of  the  life  or  safety  of  the  employee,  then 
in  such  event  the  employee  can  either  take  the  benefits  pro- 
vided under  this  act  or  sue  in  court,  to  recover. 

The  defendant  contends  that  the  willful  act  in  contem- 
plation of  this  statute  must  have  been  an  act  done  inten- 
tionally with  a  purpose  to  inflict  injury.  The  court  charged 
at  the  trial,  in  part : 

'To  constitute  a  willful  act  in  this  case,  you  must  find 
that  the  action  of  Fisher  was  such  an  action  as  to  evince  an 
utter  disregard  of  consequences  so  as  .to  inflict  the  injuries 
complained  of.  In  other  words,  the  negligent  action  was 
such  recklessness  reaching  in  degree  to  utter  disregard  of 
consequences  which  might  probably  follow.  If  the  action  of 
Fisher  in  ordering  McWeeny  to  work  on  this  scaffold  and  in 
connection  with  this  derrick  was  done  under  such  circum- 
stances as  .to  evince  an  utter  disregard  for  the  safety  of 
McWeeny  and  the  other  employees  working  there  in  connec- 
tion with  him,  then  that  action  was  a  willful  act.'  .  .  . 

If  the  contention  urged  by  defendant  that  a  willful  act 
had  .to  be  an  act  coupled  with  an  intention  to  injure  the 
employee  were  the  correct  construction  of  those  terms  of 
the  statute,  then  the  employers  of  laborers,  so  long  as  they 
themselves  or  their  employees  did  not  criminally  injure  their 
employees,  could  incur  no  liability  no  matter  how  recklessly 
or  carelessly  they  conducted  their  business  without  any 
regard  to  the  safety  of  those  employed.  .  .  . 

Extreme  cases  of  this  sort  will  seldom  arise.  I  can  not 
believe  that  the  legislature  intended  that  the  term  'willful 


322  MAN-UAL  OF  COMPENSATION  LAW 

act'  should  be  narrowed  down  to  mean  a  deliberate  intent 
to  do  bodily  injury  and  nothing  else.  This  compensation  act 
was  passed  for  a  purpose ;  its  primary  purpose  was  to  pro- 
tect the  men  engaged  in  the  various  occupations  in  Ohio. 

In  my  opinion,  the  case  was  fairly  tried,  and  the  issues 
fairly  submitted,  and  the  motion  for  a  new  trial  will  be 
overruled." 

Failure  to  grind  a  circular  saw  as  required  by  laws  of 
1909,  page  202,  held  "an  intentional  omission"  within  111. 
acct.  of  1911.  Forrest  v.  Roper  Furniture  Co.,  267  111.  331, 
108  N.  E.  328.  See  further  11  N.  C.  C.  A.  547-560. 

§  258.  Willful  and  Known  Violation  of  Statute — Kentucky. 

The  word  "willful"  when  used  alone  in  connection  with 
statutes  has  been  construed  to  mean  simply  a  voluntary  act 
of  a  party  as  distinguished  from  coercion.  Tray  v.  Com., 
76  S.  W.  185,  25  Ky.  L.  R.  669 ;  Louisville  &  J.  Ferry  Co.  v. 
Com.,  104  Ky.  727,  47  S.  W.  878,  20  Ky.  L.  R.  927;  N.  C.  & 
St.  L.  Ry.  Co.  v.  Com.,  160  Ky.  50,  169  S.  W.  511 ;  Tfiomas' 
Kentucky  Words  and  Phrases,  p.  498. 

But  "willful  and  known"  means  not  only  a  voluntary  act, 
but  with  it,  as  a  necessary  attribute,  must  go  actual  or  con- 
structive knowledge  of  the  true  facts.  For  instance,  sup- 
pose a  girl  really  under  16  years  of  age,  who  appeared  to  be 
16  years  or  older,  applied  for  employment  as  a.stemmer  in 
a  tobacco  factory  and  stated  her  age  as  over  16  years. 
This  being  a  prohibited  employment  for  children  under  16 
years  (see  Ky.  Stat.,  331a  [9]),  the  employer  made  a  rea- 
sonable investigation  and  required  affidavits  as  to  the  ap- 
plicant's age  which  stated  she  was  over  16.  If  this  girl  was 
employed  and  subsequently  injured,  although  the  employ- 
ment was  actually  illegal,  there  was  no  "willful  and  known 
violation  of  statute,"  and  therefore  no  alternative  liability 
under  section  30  of  the  Kentucky  Act  of  1ST16. 

§  259.  Failure  to  Comply  With    a    Specific    Statute— Ken- 
tucky. 

Section  29  of  the  Kentucky  Act  of  1916,  which  is  quite 


GENERAL  TOPICS  323 

similar  to  some  other  acts  in  this  regard,  reads  in  part  as 
follows :  "Where  an  accident  is  caused  in  any  degree  by  the 
intentional  failure  of  the  employer  to  comply  with  any  spe- 
cific statute  or  lawful  regulation  made  thereunder,  commu- 
nicated to  such  employer  and  relative  to  the  installation  or 
maintenance  of  safety  appliances  or  methods,  the  compen- 
sation for  which  the  employer  would  otherwise  have  been 
liable  under  this  act,  shall  be  increased  15  per  cent,  in  the 
amount  of  each  payment." 

If  the  legislature  had  intended  that  the  mere  failure  of 
the  employer  to  comply  with  a  specific  statute,  or  regula- 
tion under  statute,  concerning  safety  appliances  or  meth- 
ods, should  increase  his  liability  15  per  cent.,  they  would 
probably  not  have  used  the  word  "intentional."  "Intention- 
al," except  in  criminal  law,  is  synonymous  with  "willful." 
Jones  v.  M.  &  0.  R.  Co.,  127  S.  W.  145 ;  Thomas'  Kentucky 
Words  and  Phrases,  p.  264.  This  construction  is  strengthen- 
ed by  the  use  of  the  phrase  "communicated  to  such  employ- 
er," although  there  is  also  room  for  the  construction  that 
this  phrase  refers  not  to  the  word  "statute,"  but  to  the 
words  "lawful  regulation  made  thereunder."  At  any  rate 
there  must  be  something  more  than  mere  failure  to  comply 
with  a  statute.  While  ordinarily,  "intention"  is  construed 
into  an  act  amounting  to  a  breach  of  statute,  whether  the 
breaker  of  it  was  ignorant  of  its  existence  or  not,  it  seems 
probable  that  in  this  instance  the  legislature  intended  that 
the  employer  should  not  become  liable  for  this  increased 
compensation  of  15  per  cent,  unless  he  failed  to  comply 
with  the  statute  or  regulation  after  it  had  been  "communi- 
cated" to  him.  It  would  make  no  difference  from  what 
source  the  employer  received  this  knowledge.  For  statutes 
concerning  safety  appliances  and  methods,  see  Carroll's  Ky. 
Stat.  (1915),  §§  2722-2738r.  (Mines  and  Mining),  and 
§331a,  sub.  sec.  10  (Minors). 


324  MANUAL  OF  COMPENSATION  LAW 

§  260.  Compensation  Not  Barred  by  Failure  of  Action  at 
Law. 

There  are  instances  under  many  of  the  acts  when  the 
employee  has  the  option  of  claiming  compensation  or  suing 
at  law.  Under  the  California  Act  the  employee  has  such  an 
option  if  the  injury  was  caused  by  the  employer's  gross 
negligence  or  willful  misconduct  of  a  certain  specified  char- 
acter. It  was  held  under  such  conditions  that  the  failure 
of  the  action  at  law  did  not  bar  a  subsequent  claim  for 
compensation.  In  the  case  of  San  Francisco  Stevedoring  Co. 
v.  Pillsbury,  170  Cal.  321,  149  Pac.  586,  9  N.  C.  C.  A.  37, 
the  court  said: 

"The  Industrial  Compensation  Act  provides  substantially 
that,  where  the  specified  conditions  of  compensation  exist 
the  right  to  recover  such  compensation  in  a  proceeding  be- 
fore the  commission  shall  be  the  exclusive  remedy  of  the 
employee,  'except  that  when  the  injury  was  caused  by  the 
employer's  gross  negligence  or  willful  misconduct  and  such 
act  or  failure  to  act  causing  such  injury  was  the  personal 
act  or  failure  to  act  on  the  part  of  the  employer  himself, 
.  .  .  and  such  act  or  failure  to  act  indicated  a  willful 
disregard  of  the  life,  limb  or  bodily  safety  of  the  employees, 
and  such  injured  employee  may,  at  his  option,  either  claim 
compensation  under  this  act  or  maintain  an  action  at  law 
for  damages.'  It  will  thus  be  seen  that  the  right  of  the  em- 
ployee to  resort  at  his  option  to  an  action  at  law  for  dam- 
ages is  restricted  to  the  class  of  cases  specified  in  the  pro- 
vision just  quoted,  viz.,  cases  where  the  injury  was  caused 
by  the  employer's  gross  negligence  or  willful  misconduct 
of  a  certain  specified  character.  The  judgment  of  the 
superior  court  in  Broderick's  (the  employee's)  action  sim- 
ply determines  that  the  allegations  of  his  complaint  failed 
to  state  a  case  of  this  character,  and,  therefore,  that  the 
proper  tribunal  for  the  adjudication  of  his  claim  is  the  In- 
dustrial Accident  Commission.  Nothing  else  can  be  held 
to  have  been  determined  against  him.  He  cannot  be  held 
to  be  estopped  thereby  from  pursuing  his  remedy  before 


GENERAL  TOPICS  325 

the  commission,  nor  can  the  commission  be  held  to  have 
been  without  jurisdiction  of  the  proceeding  instituted  by 
him." 

§  261.  Extraterritorial  Effect  of  Acts. 

In  Kentucky  this  question  was  simplified  by  the  follow- 
ing provision,  being  section  8  of  the  Act  of  1916 :  "Employ- 
ers who  hire  employees  within  this  State  to  work  in  whole 
or  in  part  without  this  State,  may  agree  in  writing  with 
such  employees  to  exempt  from  the  operation  of  this  act 
injuries  received  outside  of  this  State,  in  the  absence  of  such 
an  agreement,  the  remedies  provided  by  this  act  shall  be 
exclusive  as  regards  injuries  received  outside  this  State 
upon  the  same  terms  and  conditions  as  if  received  within 
this  State." 

In  many  States  where  a  provision  similar  to  this  one  was 
not  incorporated  in  the  act,  the  courts  have  found  great  dif- 
ficulty in  determining  whether  their  acts  applied  to  injuries 
received  in  another  State,  although  the  contract  of  employ- 
ment was -local.  Some  of  the  courts  have  decided  that  in- 
juries received  outside  of  the  State  were  compensable  where 
there  was  a  local  contract  of  employment,  but  they  have 
been  forced  to  search  their  compensation  law  to  construe 
into  it  an  implied  intention  of  the  legislature  to  cover  such 
cases.  Kennerson  v.  Thomas  Towboat  Co.,  89  Conn.  367, 
94  Atl.  372,  L.  R.  A.  1916A  436;  Spratt  v.  Sweeney  &  G.  Co., 
168  App.  Div.  403,  153  N.  Y.  Supp.  505;  Deeny  v.  Wright  & 
C.  Lighterage  Co.,  36  N.  J.  L.  J.  121;  Rounseville  v.  Cent. 
R.  Co.,  —  N.  J.  L.  — ,  94  Atl.  392.  The  contrary  was  held  in 
Gould's  case,  215  Mass.  480,  102  N.  E.  693,  Ann.  Cas.  1914D 
372,  4  N.  C.  C.  A.  60.  This  view  was  also  taken  by  the 
Michigan  Industrial  Board  in  Keyes-Davis  Co.  v.  Alder- 
dyce,  Detroit  Legal  News,  May  3,  1913,  3  N.  C.  C.  A.  639, 
note,  and  this  seems  also  to  be  the  rule  in  England  Toma- 
lin  v.  S.  Pearson  &  Son,  2  K.  B.  61,  25  Times  L.  R.  477,  2 
B.  W.  C.  C.  1. 

For  detailed  discussion  of  this  question  see  L.  R.  A. 


326  MANUAL  OF  COMPENSATION  LAW 

1916A  (note),  443-445.  Also  7  N.  C.  C.  A.  (note),  144-148. 
For  discussion  of  actions  in  a  foreign  State  for  injuries  in 
a  compensation  State,  see  7  N.  C.  C.  A.  (note),  148-152. 
On  the  question  of  a  common  law  action  in  a  compensation 
State  for  injuries  in  a  foreign  State,  see  Reynolds  v.  Day, 
79  Wash.  499,  140  Pac.  681,  L.  R.  A.  1916A  432,  5  N.  C.  C. 
A.  814.  For  a  decision  denying  the  right  to  bring  a  com- 
mon law  action  in  Rhode  Island  for  injuries  received  in 
Massachusetts,  where  the  contract  of  employment  was  made 
and  where  no  right  of  action  at  common  law  existed  be- 
cause of  the  employee's  failure  to  comply  with  the  Massa- 
chusetts' Workmen's  Compensation  Statute,  see  Pendar  v. 
H.  &  B.  Amer.  Machine  Co.,  35  R.  I.  321,  87  Atl.  1,  L.  R.  A. 
1916A  428. 

A  miner  employed  in  West  Virginia  worked  a  part  of 
the  time  in  that  part  of  the  mines  situated  in  West  Vir- 
ginia, and  part  of  the  time  in  the  portion  situated  in  an 
adjoining  state.  He  was  killed  while  at  work  in  the  ad- 
joining state.  It  was  held  that  his  widow  was  entitled  to 
compensation,  and  that  the  relation  of  employer  and  em- 
ployee under  the  act  is  contractual  and  that  the  Statute  is 
a  part  of  the  contract  of  employment  and  is  enforceable  in 
other  jurisdictions  unless  opposed  to  the  public  policy 
thereof.  Gooding  v.  Ott,  87  S.  E.  863  (West  Va.) 

It  was  held  in  New  York  that  where  an  employer 
insured  under  the  compensation  act  of  that  state,  an  em- 
ployee was  entitled  to  benefits  under  the  New  York  act 
when  injured  in  the  course  of  his  employment  outside  of 
the  state.  Spratt  v.  Sweeney  &  Gray  Co.,  168  App.  Div. 
403,  153  N.  Y.  Supp.  505,  order  affirmed  Post  v.  Burger  & 
Gohlke,  216  N.  Y.  544,  111  N.  E.  351.  See  also,  Edwardsen 
v.  Jarvis  Lighterage  Co.,  160  App.  Div.  368,  153  N.  Y.  Supp. 
391,  and  Lehmann  v.  Ramo  Films,  155  N.  Y.  Supp.  1032, 
92  Misc.  Rep.  418. 

It  was  said  in  Deeny  v.  Wright  &  Cobb  Lighterage  Co., 
36  N.  J.  L.  J.  121,  7  N.  C.  C.  A.,  note  144:  "The  statute  can 
have  no  extraterritorial  effect,  but  it  can  require  a  contract 


GENERAL  TOPICS  327 

to  be  made,  by  two  parties  to  a  hiring,  that  the  contract 
shall  have  an  extraterritorial  effect.  The  contract  is  bind- 
ing on  the  employee  himself  and  upon  the  employer,  and 
it  is  conclusively  presumed  that  the  parties  have  accepted 
the  provisions  of  section  2  and  have  agreed  to  be  bound 
thereby.  ...  It  would  seem  that  the  reasonable  con- 
struction of  the  statute  is,  that  it  writes  into  the  contract 
of  employment  certain  additional  terms.  The  cause  of  ac- 
tion of  the  petitioner  is  ex  contractu.  The  lex  loci  contractus 
governs  the  construction  of  the  contract  and  determines 
the  legal  obligations  arising  from  it." 

For  note  on  extraterritorial  effect  of  Workmen's  Com- 
pensation Acts  see  9  N.  C.  C.  A.  918-932,  10  N.  C.  C.  A. 
888. 

§  262.  Act  Effective  Outside  New  York. 

The  case  of  Post  v.  Burger  &  Gohlke,  216  N.  Y.  544,  111 
N.  E.  351,  10  N.  C.  C.  A.  888,  Ann.  Cas.  1916B  158,  decides 
that  the  New  York  act  is  effective  outside  of  New  York. 
The  facts  were  as  follows: 

Burger  &  Gohlke  formed  a  corporation  engaged  in  sheet- 
metal  work,,  their  office  being  in  Brooklyn,  N.  Y.  Post,  a 
resident  of  that  place,  had  been  in  their  employ  for  more 
than  two  years,  and  was  sent  by  them  on  September  1, 
1914,  to  perform  work  on  a  building  in  Jersey  City,  N.  J., 
and  while  there  engaged  he  received  an  injury  to  his  wrist 
for  which  compensation  was  awarded.  To  secure  compen- 
sation due  to  its  employees  from  time  to  time  the  company 
named  was  insured,  and  from  the  award  of  the  State  Com- 
mission, affirmed  by  the  appellate  division  of  the  supreme 
court,  the  employer  and  its  insurer  brought  this  appeal  to 
the  court  of  appeals.  The  sole  question  involved  was  that 
of  the  effect  of  the  law  as  covering  work  done  outside  the 
limits  of  the  State,  and  the  construction  adopted  by  the 
courts  was  to  the  effect  that  the  law  does  so  apply,  on  the 
ground  that  the  act  reads  into  the  contract  between  every 
employee  and  his  employer  the  provisions  of  the  compen- 
sation system  without  regard  to  the  place  of  the  occur- 


328  MANUAL  OF  COMPENSATION  LAW 

rence  of  the  accident.  Having  stated  the  facts,  and  an- 
nounced certain  fundamental  principles,  Judge  Chase  said: 
"It  is  well  settled  that  the  legislature  has  the  power  to 
compel  a  contract  between  employer  and  employee  that  is 
extraterritorial  in  effect. 

In  determining  the  intention  of  the  legislature  in  en- 
acting the  workmen's  compensation  law  of  this  State  there 
are  two  important  provisions  of  the  act  that  must  con- 
stantly be  borne  in  mind,  as  they  affect  and  characterize 
all  the  other  provisions  of  the  act: 

1.  In  the  absence  of  substantial  evidence  to  the  con- 
trary, it  must  be  presumed  that  the  claim  comes  within 
the  provisions  of  the  act.     (Workmen's  compensation  law, 
sec.  21.) 

2.  The  liability  of  the  employer  for  compensation  in- 
cludes every  accidental  personal  injury  sustained  by  the 
employee,  arising  out  of  and  in  the  course  of  his  employ- 
ment, without  regard  to  fault  as  a  cause  of  such  injury.' ' 

He  then  discussed  the  various  provisions  of  the  act,  de- 
fining the  parties  affected,  the  duty  of  the  employer  as  to 
medical  attendance,  security  of  compensation,  and  mode  of 
determination  of  rights  under  the  act.  Reference  was  then 
made  to  the  inadequacy  of  the  common-law  doctrine  of  em- 
ployer's liability  under  present  industrial  conditions,  after 
which  Judge  Chase  continued: 

"The  act  was  passed  pursuant  to  a  widespread  belief 
in  its  value  as  a  means  of  protecting  workingmen  and  their 
dependents  from  want  in  case  of  injury  when  engaged  in 
certain  specified  employments.  It  was  the  intention  of  the 
legislature  to  secure  such  injured  workmen  and  their  de- 
pendents from  becoming  objects  of  charity  and  to  make 
reasonable  compensation  for  injuries  sustained  or  death 
incurred  by  reason  of  such  employment,  a  part  of  the  ex- 
pense of  the  lines  of  business  included  within  the  defini- 
tion of  hazardous  employments  as  stated  in  the  act.  It 
was  also  the  intention  of  the  legislature  to  make  such  com- 
pensation not  only  a  part  of  the  expense  of  the  business 


GENERAL  TOPICS  329 

and  a  part  of  the  cost  of  the  things  manufactured  and  of 
transportation  as  defined  by  the  act,  but  ultimately  to  re- 
quire such  compensation  to  be  paid  by  the  consumer  of 
the  manufactured  goods  and  by  those  securing  transporta- 
tion. The  act,  in  view  of  its  humane  purpose,  should  be 
construed  to  intend  that  in  every  case  of  employment  there 
is  a  constructive  contract  between  the  employer  and  em- 
ployee, general  in  its  terms  and  unlimited  as  to  territory; 
that  the  employer  shall  pay  as  provided  by  the  act  for  a 
disability  or  the  death  of  the  employee  as  therein  stated. 
The  duty  under  the  statute  defines  the  terms  of  the  con- 
tract. (6  Ruling  Case  Law  588;  Board  of  Highway  Com- 
missioners v.  Bloomington,  253  Ills.  164.) 

Our  conclusion  as  to  the  intention  of  the  legislature 
is  reached  from  the  act  as  a  whole.  The  intention  is  also 
specifically  shown  by  the  fact,  as  already  stated,  that  an 
employee  as  defined  by  this  act  includes  a  person  engaged 
in  the  course  of  his  employment  away  from  the  plant  of 
the  employer.  The  language  of  the  statute,  if  construed 
literally,  and  we  see  no  reason  why  it  should  not  be,  ex- 
pressly includes  the  employee  in  this  case,  as  he  was  en- 
gaged in  his  employment  in  New  Jersey,  away  from  the 
plant  of  his  employer,  and  under  the  employer's  express 
direction. 

It  is  also  specifically  shown  by  the  fact  that  the  cost  of 
insurance  is  determined  by  ascertaining  the  number  of  all 
the  employees  of  the  employer  and  the  wages  paid  to  them. 
There  is  no  provision  in  the  act  for  ascertaining  the  num- 
ber of  employees  of  an  employer  engaged  in  employment 
within  the  State  of  New  York,  nor  is  there  any  deduction 
from  the  amount  to  be  paid  for  State  or  other  insurance  by 
reason  of  the  fact,  if  true,  that  a  portion  of  the  employees 
of  an  employer  are  or  may  be  engaged  outside  of  the  boun- 
daries of  the  State.  The  provision  in  regard  to  insurance 
and  the  manner  of  ascertaining  the  premium  for  the  same 
and  the  fact  that  no  provision  is  made  for  basing  the  in- 
surance premium  on  employment  within  the  State  or  in 


330  MANUAL  OF  COMPENSATION  LAW 

any  way  limiting  the  liability  of  the  insurance  carrier  to 
injuries  received  in  the  State,  shows  that  the  act  was  passed 
without  intending  to  limit  the  same  to  a  contract  for  em- 
ployment within  the  State.  The  purpose  of  the  legislature 
would  seem  to  require  that  the  act  be  read  into  every  con- 
tract of  employment  and  provide  compensation  for  every 
injury  incurred  while  engaged  in  such  employment  with- 
out limitation." 

The  appellants  had  referred  to  a  case  arising  under  the 
compensation  act  of  Massachusetts,  in  which  it  was  held 
that  the  law  of  that  State  did  not  have  effect  beyond  its 
boundaries ;  as  to  this,  however,  it  was  pointed  out  that  the 
statute  of  Massachusetts  contained  expressions  not  found 
in  that  of  New  York,  so  that  the  case  did  not  afford  a  pre- 
cedent. Reference  was  also  made  to  a  case  in  the  Connec- 
ticut courts,  Kennerson  v.  Thames  Towboat  Co.,  94  Atl. 
372,  and  to  Rounsaville  v.  Central  Railroad  Co.,  94  Atl.  392, 
a  New  Jersey  case,  in  which  cases  the  laws  of  the  respec- 
tive States  were  held  to  have  extraterritorial  effect.  Con- 
cluding, Judge  Chase  said: 

"The  courts  of  this  State  have  recognized  the  compen- 
sation laws  of  other  States  and  countries  and  give  effect 
to  such  laws,  unless  they  are  contrary  to  the  laws  or  policy 
of  this  State.  [Cases  cited.] 

We  appreciate  that  any  determination  that  may  be 
made  of  the  question  under  consideration  will  result  in  some 
practical  difficulties  in  administering  the  statute,  but  the 
difficulties  that  will  be  met  with  in  administering  the  stat- 
ute construed  as  requiring  a  contract  binding  upon  both 
parties  without  limitation  will  be  less  burdensome  than  the 
difficulties  that  would  be  experienced  with  a  contrary  con- 
struction of  the  statute.  The  practical  difficulties  that  may 
be  met  in  administering  the  statute  as  herein  construed 
can  be  substantially  overcome  by  adopting  rules  for  the 
commission  or  perhaps  by  further  legislation." 


GENERAL  TOPICS  331 

§  263.  Act  Not  Effective  Outside  of  Massachusetts. 

That  the  Massachusetts  Act  was  not  effective  outside 
of  that  state  was  decided  In  re  American  Mutual  Liability 
Insurance  Co.,  215  Mass.  480,  102  N.  E.  693,  4  N.  C.  C.  A. 
60,  Ann.  Gas  1914D  372.  The  court  said : 

"The  facts  are  that  the  employee,  a  citizen  and  resident 
of  this  Commonwealth,  made  a  contract  here  with  the  em- 
ployer, a  Massachusetts  corporation,  for  rendering  to  it  his 
personal  services,  and  accepted  the  benefits  of  the  act.  In 
the  course  of  his  employment  he  received  the  injury  for 
which  this  claim  arises,  in  the  State  of  New  York.  He  was 
principally  employed  in  Massachusetts,  but  at  times  inci- 
dentally worked  in  New  York  and  other  States.  The  in- 
dustrial accident  board  found  that  the  insurer  had  been 
paid  by  the  employer  for  insuring  all  injuries  received  by 
its  employees  in  the  course  of  their  employment,  whether 
within  or  without  the  Commonwealth.  This  factor  is  not 
of  much  significance  because  the  obligation  of  the  policy 
does  not  refer  to  anything  occurring  outside  the  State,  and 
provides  only  for  performance  of  the  requirements  and  pay- 
ment of  the  compensation  designated  in  the  act.  If  the  act 
enjoins  the  payment  of  compensation  for  injuries  received 
outside  the  State  the  insurer  has  contracted  therefor,  other- 
wise it  has  not. 

The  question  is  whether  the  act  governs  the  rights  of 
parties  touching  injuries  received  outside  the  State.  It  may 
be  assumed  for  the  purposes  of  this  judgment  that  it  is 
within  the  power  of  the  legislature  to  give  to  the  act  the 
effect  claimed  for  it  by  the  employee.  (Mulhall  v.  Fallen, 
176  Mass.  266,  57  N.  E.  386. 

The  point  to  be  decided  is  whether  the  language  used 
in  the  act  indicates  a  purpose  to  make  its  terms  applicable 
to  injuries  received  outside  the  State. 

A  consideration  of  the  act  in  detail  fails  to  disclose  any 
plain  intent  to  that  end.  On  the  contrary,  several  provis- 
ions indicate  solely  intrastate  operation. 

The  subject  of  personal  injuries  received  by  a  work- 


332  MANUAL  OF  COMPENSATION  LAW 

man  in  the  course  of  his  employment  is  within  the  control 
of  the  sovereign  power  where  the  injury  occurs.  'It  must 
certainly  be  the  right  of  each  State  to  determine  by  its 
laws  under  what  circumstances  an  injury  to  the  person 
will  afford  a  cause  of  action.'  Davis  v.  N.  Y.  &  N.  E.  R.  R., 
143  Mass.  301,  9  N.  E.  815,  58  Am.  Rep.  138.  See  Cormo  v. 
Boston  Bridge  Works,  205  Mass.  366,  91  N.  E.  313.  Most 
of  the  compensation  acts  of  the  States  of  the  Union  con- 
tain no  provision  respecting  injuries  received  in  a  foreign 
jurisdiction,  although  several  exempt  persons  engaged  in 
interstate  commerce  where  Federal  laws  shall  be  construed 
to  furnish  exclusive  'remedies,  while  some  expressly  limit 
the  operation  to  employment  within  the  State. 

These  various  acts,  although  having  certain  features 
in  common,  nevertheless  differ  widely  in  many  essential 
aspects.  Some  are  compulsory.  Some  prohibit  contracts 
for  a  different  form  of  compensation,  and  make  criminal 
under  severe  penalties  failure  to  comply  with  their  terms. 
Some  provide  for  strict  State  insurance,  while  others  do 
not.  The  amount  of  compensation  afforded  and  the  cir- 
cumstances under  which  it  is  to  be  awarded  differ.  The 
diversity  of  public  policy  already  manifested  between  the 
several  States  is  considerable.  To  say  that  such  acts  are 
intended  to  operate  on  injuries  received,  outside  the  sev- 
eral States  enacting  them  would  give  rise  to  many  diffi- 
cult questions  of  conflict  of  laws. 

If  employees  and  employers  from  different  States 
carry  their  domiciliary  personal  injury  law  with  them  in- 
to other  jurisdictions,  confusion  would  ensue  in  the  ad- 
ministration of  the  law,  and  at  least  the  appearance  of  in- 
equality among  those  working  under  similar  conditions.  If 
such  a  result  had  been  intended  by  the  general  court,  it 
can  not  be  doubted  that  it  would  have  been  disclosed  in 
unambiguous  words.  The  trend  of  the  development  of  the 
law,  historically  considered,  has  been  away  from  a  personal 
law,  and  toward  a  territorial  law,  before  which  all  are  equal. 
•  All  these  considerations  combined  forbid  the  inference 


GENERAL  TOPICS  333 

that  the  legislature,  having  failed  to  use  plain  and  unmis- 
takable words  to  that  end,  intended  our  act  to  govern  the 
rights  of  the  parties  as  to  an  injury  received  in  another 
jurisdiction." 

§  264.  Theory- Construction  of  Acts. 

It  is  almost  the  universal  rule  that  the  provisions  of 
Workmen's  Compensation  Acts  being  remedial  in  charac- 
ter should  be  broadly  construed  to  effectuate  the  provis- 
ions of  the  Statute.  Appeal  of  Hotel  Bond  Co.  93  Atl.  245, 
89  Conn.  143. 

Liability  under  the  acts  is  based  on  contract.  Appeal 
of  Hotel  Bond  Co.  89  Conn.  143,  93  Atl.  245.  When  the  em- 
ployer and  employee  have  elected  to  come  within  the  Act  the 
remedy  is  exclusive.  McRoberts  v.  Nat.  Zinc  Co.,  93  Kan. 
364,  144  Pac.  247. 

The  provisions  of  the  Minnesota  Act  must  be  liberally 
construed.  State  v.  District  Court  of  St.  Louis  Co.,  128 
Minn.  43,  150  N.  W.  211. 

The  proceeding  for  compensation  under  the  New  Jer- 
sey Act  was  held  to  be  neither  an  action  in  contract  nor  in 
tort  but  really  a  proceeding  to  enforce  a  statutory  duty. 
Baur  v.  Court  of  Common  Pleas  in  and  for  Essex  Co.,  88 
N.  J.  Law,  128,  95  Atl.  627. 

§  265.  Constitutionality  of  Acts. 

The  Constitutionality  of  the  various  Acts  was  raised  in 
the  following  cases: 

CALIFORNIA— Great  Western  Power  Co.  v.  Pillsbury, 
170  Cal.  180,  149  Pac.  35,  9  N.  C.  C.  A.  466.  Englebretson 
v.  Ind.  Ace.  Comm.,  170  Cal.  793,  151  Pac.  421,  10  N.  C.  C. 
A.  545.  Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  686, 
151  Pac.  398,  10  N.  C.  C.  A.  1. 

CONNECTICUT— Hotel  Bond  Co.'s  Appeal,  89  Conn. 
143,  93  Atl.  245. 

ILLINOIS— Deibeikis  v.  Link  Belt.  Co.,  261  111.  454,  101 
N.  E.  211,  Ann.  Cas.  1915A  241,  5  N.  C.  C.  A.  401.  Dietz 
v.  Big  Muddy  Coal  &  Iron  Co.,  263  111.  480,  105  N.  E.  289,  5 
N.  C.  C.  A.  419.  Crooks  v.  Tazewell  Coal  Co.,  263  111.  343, 


334  MANUAL  OF  COMPENSATION  LAW 

105  N.  E.  13,  5  N.  C.  C.  A.  410,  Ann.  Gas.  1915C  304.  Przy- 
kopenski  v.  Citizens  Coal  Mining  Co.,  270  111.  275,  110  N.  E. 
336.  Courier  v.  Simpson  Construction  Co.,  264  111.  488,  106 
N.  E.  350,  6  N.  C.  C.  A.  548.  Dragovich  v.  Iroquois  Iron 
Co.,  269  111.  478, 109  N.  E.  99.  Devine  v.  Delano,  272  111.  166, 
111  N.  E.  742.  Fergus  v.  Russell,  270  111.  304,  110  N.  E. 
130,  Ann.  Gas.  1916B  1120.  Richardson  v.  Sears-Roebuck  & 
Co.,  271  111.  325,  111  N.  E.  85.  Lauruska  v.  Empire  Mfg. 
Co.,  271  111.  304,  111  N.  E.  82. 

IOWA— Hunter  v.  Colfax  Consol.  Coal  Co.,  (Iowa)  154 
N.  W.  1037,  11  N.  C.  C.  A.  86.  Hawkins  v.  Bleakley,  220 
Fed.  378. 

KANSAS— Shade  v.  Ash  Grove  Lumber  &  Portland  Ce- 
ment Co.,  93  Kan.  257,  144  Pac.  249. 

KENTUCKY— Greene  v.  Caldwell,  170  Ky.  571,  186  S. 
W.  649,  12  N.  C.  C.  A.  520.  Compare  Ky.  State  Journal  Co. 
v.  Workmen's  Compensation  Board,  161  Ky.  562,  170  S.  W. 
1166,  L.  R.  A.  1916A  389,  which  declared  the  1914  Act  in- 
valid. 

MARYLAND — American  Coal  Co  v.  Allegheney  County 
Commissioners,  128  Md.  564,  98  Atl.  143. 

MASSACHUSETTS— Opinion  of  Justices,  209  Mass. 
607,  96  N.  E.  308,  1  N.  C.  C.  A.  557.  Young  v.  Duncan,  218 
Mass.  346,  106  N.  E.  1.  Turnquist  v.  Hannon,  219  Mass. 
560,  107  N.  E.  443. 

MICHIGAN— Mackin  v.  Detroit-Timkin  Axle  Co.,  187 
Mich.  8,  153  N.  W.  49.  Wood  v.  City  of  Detroit,  155  N.  W. 
592,  L.  R.  A.  1916C  388.  Grand  Rapids  Lumber  Co.  v.  Blair, 
(Mich)  157  N.  W.  29. 

MINNESOTA— Mathison  v.  Minneapolis  Street  Ry.  Co., 
126  Minn.  286,  148  N.  W.  71,  5  N.  C.  C.  A.  871.  State  ex 
rel  Nelson-Spelliscy  Co.  v.  District  Court,  128  Minn.  221, 
150  N.  W.  623.  Johnson  v.  Nelson,  128  Minn.  158,  150  N. 
W.  620.  State  v.  District  Court  of  Meeker  Co.,  128  Minn. 
221,  150  N.  W.  623. 

MONTANA— Cunningham     v.     N.     W.     Improvement 


GENERAL  TOPICS  335 

Ass'n.,  44  Mont.  180,  119  Pac.  554,  1  N.  C.  C.  A.  720.  Lewis 
&  Clark  Co.  v.  Ind.  Ace.  Comm.  (Mont.)  155  Pac.  268. 

NEW  HAMPSHIRE— Wheeler  v.  Contoocook  Mills 
Corp.,  77  N.  H.  551,  94  Atl.  265. 

NEW  JERSEY— Sexton  v.  Newark  District  Teleg.  Co., 
84  N.  J.  Law  85,  86  Atl.  451,  3  N.  C.  C.  A.  569,  affirmed  86 
N.  J.  Law  701,  91  Atl.  1070.  Huyett  v.  Pa.  R.  Co.,  86  N.  J. 
Law  683,  92  Atl.  58.  Allen  v.  Millville,  87  N.  J.  Law  356, 
95  Atl.  130,  1011,  9  N.  C.  C.  A.  749.  Troth  v.  Millville  Bot- 
tle Works,  86  N.  J.  L.  558,  91  Atl.  1031,  affirmed  in  98  Atl. 
435. 

NEW  YORK— Jenson  v.  Southern  Pac.  Co.,  215  N.  Y. 
514,  109  N.  E.  600,  L.  R.  A.  1916A  403,  Ann.  Cas.  1916B 
276,  9  N.  C.  C.  A.  286.  Moore  v.  Lehigh  Valley  R.  Co.,  169 
App.  Div.  177,  154  N.  Y.  Supp.  620.  Wagner  v.  American 
Bridge  Co.,  158  N.  Y.  Supp.  1043.  Herkey  v.  Agar  Mfg. 
Co.,  90  Misc.  457,  153  N.  Y.  Supp.  369.  In  re  Walker,  215  N. 
Y.  529,  109  N.  E.  604,  Ann.  Cas.  1916B  87.  McQueeney  v. 
Sutphen,  167  App.  Div.  528,  153  N.  Y.  Supp.  554.  Compare 
Ives  v.  South  Buffalo  R.  Co.,  201  N.  Y.  271,  94  N.  E.  431, 
34  L.  R.  A.  (N.  S.)  162,  Ann.  Cas.  1912B  156,  1  N.  C.  C.  A. 
517. 

OHIO— State  ex  rel  Yaple  v.  Creamer,  85  Ohio  St.  349, 
39  L.  R.  A.  (N.  S.)  694,  97  N.  E.  602,  1  N.  C.  C.  A.  30.  Jef- 
frey Mfg.  Co.  v.  Blagg,  90  Ohio  St.  376,  108  N.  E.  465,  af- 
firmed 235  U.  S.  571,  59  L.  ed.  364,  35  Sup.  Ct.  Rep.  167,  7 
N.  C.  C.  A.  570.  Porter  v.  Hopkins,  109  N.  E.  629. 

OKLAHOMA— Adams  v.  Iten  Biscuit  Co.,  (Okla.)  162 
Pac.  398. 

OREGON— Evanhoff  v.  State  Ind.  Ace.  Comm.,  78  Ore. 
503,  154  Pac.  106. 

RHODE  ISLAND— Sayles  v.  Foley,  96  Atl.  340,  12  N. 
C.  C.  A.  949. 

TEXAS— Middleton  v.  Texas  Power  &  Light  Co.,  (Tex.) 
185  S.  W.  556,  11  N.  C.  C.  A.  873.  Memphis  Cotton  Oil  Co. 
v.  Tolbert,  (Tex.  Civ.  App.)  171  S.  W.  309,  7  N.  C.  C.  A. 
547. 


336  MANUAL  OF  COMPENSATION  LAW 

WASHINGTON— State  ex  rel  Davis-Smith  Co.  v.  Clau- 
sen, 65  Wash.  156,  37  L.  R.  A.  (N.  S.)  466,  117  Pac.  1101, 
2  N.  C.  C.  A.  823,  3  N.  C.  C.  A.  599.  Stoll  v.  Pac.  Coast 
Steamship  Co.,  205  Fed.  169,  3  N.  C.  C.  A.  606.  State  ex 
rel  Pratt  v.  Seattle,  73  Wash.  396,  132  Pac.  45.  State  y. 
Mountain  Timber  Co.,  75  Wash.  581,  135  Pac.  645,  4  N.  C. 
C.  A.  811.  Peet  v.  Mills,  76  Wash.  437,  136  Pac.  685,  L. 
R.  A.  1916A  358,  4  N.  C.  C.  A.  786,  Ann.  Cas.  1915D  154. 

WEST  VIRGINIA— De  Francesco  v.  Piney  Mine  Co., 
(W.  Va.)  86  S.  E.  777,  10  N.  C.  C.  A.  1015. 

WISCONSIN— Borgnis  v.  Falk  Co.,  147  Wis.  327,  133 
N.  W.  209,  39  L.  R.  A.  (N.  S.)  489,  3  N.  C.  C.  A.  649.  Mel- 
lin  Lumber  Co.  v.  Ind.  Comm.,  154  Wis.  114,  L.  R.  A.  1916A 
374,  142  N.  W.  187,  Ann.  Cas.  1915B  997. 

After  the  first  part  of  this  book  was  in  print  the  Supreme  Court 
of  the  United  States  handed  down  some  very  important  decisions 
relating  to  the  constitutionality  of  the  New  York,  Iowa  and  Washing- 
ton Acts  and  to  the  conflict  between  these  acts  and  the  Federal  Em- 
ployers' Liability  Law.  These  decisions  are  of  very  great  importance 
and  they  are  printed  in  full  in  the  following  pages. 

NEW  YORK  CENTRAL  RAILROAD  CO. 

V. 

SARAH  WHITE. 
-  U.  S.  — ,  37  Sup.  Ct.  Rep.  247. 

In  error  to  the  Supreme  Court,  Appellate  Division,  Third 
Judicial  Department,  of  the  State  of  New  York,  to  review 
a  judgment  affirmed  by  the  Court  of  Appeals  of  that  State, 
which  affirmed  an  award  by  the  State  Workmen's  Compen- 
sation Commission.  Affirmed. 

See  same  case  below,  in  appellate  division,  169  App. 
Div.  903,  152  N.  Y.  Supp.  1149;  in  court  of  appeals,  216 
N.  Y.  653,  110  N.  E.  1051. 

The  facts  are  stated  in  the  opinion. 

'  Messrs.  William  L.  Visscher,  Frank  V.  Whiting,  Robert 
E.  Whalen,  and  H.  Leroy  Austin  for  plaintiff  in  error. 


GENERAL  TOPICS  337 

Messrs.  Harold  J.  Hinman  and  E.  Clarence  Aiken,  and 
Mr.  Egburt  E.  Woodbury,  Attorney  General  of  New  York, 
for  defendant  in  error. 

Mr.  Justice  Pitney  delivered  the  opinion  of  the  court : 

A  proceeding  was  commenced  by  defendant  in  error  be- 
fore the  Workmen's  Compensation  Commission  of  the  State 
of  New  York,  established  by  the  Workmen's  Compensation 
Law  of  that  State,  to  recover  compensation  from  the  New 
York  Central  &  Hudson  River  Railroad  Company  for  the 
death  of  her  husband,  Jacob  White,  who  lost  his  life  Sep- 
tember 2,  1914,  through  an  accidental  injury  arising  out 
of  and  in  the  course  of  his  employment  under  that  com- 
pany. The  Commission  awarded  compensation  in  accord- 
ance with  the  terms  of  the  law;  its  award  was  affirmed, 
without  opinion,  by  the  appellate  division  of  the  supreme 
court  for  the  third  judicial  department,  whose  order  was 
affirmed  by  the  court  of  appeals,  without  opinion.  169  App. 
Div.  903,  152  N.  Y.  Supp.  1149,  216  N.  Y.  653,  110  N.  E. 
1051.  Federal  questions  having  been  saved,  the  present 
writ  of  error  was  sued  out  by  the  New  York  Central  Rail- 
road Company,  successor,  through  a  consolidation  of  cor- 
porations, to  the  rights  and  liabilities  of  the  employing 
company.  The  writ  was  directed  to  the  appellate  division, 
to  which  the  record  and  proceedings  had  been  remitted  by 
the  court  of  appeals.  Sioux  Remedy  Co.  v.  Cope,  235  U.  S. 
197,  200,  59  L.  ed.  193,  196,  35  Sup.  Ct.  Rep.  57. 

The  errors  specified  are  based  upon  these  contentions: 
(1)  that  the  liability,  if  any,  of  the  railroad  company  for 
the  death  of  Jacob  White,  is  defined  and  limited  exclusively 
by  the  provisions  of  the  Federal  Employers'  Liability  Act 
of  April  22,  1908,  chap.  149,  35  Stat.  at  L.  65,  Comp.  Stat. 
1913,  §  8657,  and  (2)  that  to  award  compensation  to  de- 
fendant in  error  under  the  provisions  of  the  Workmen's 
Compensation  Law  would  deprive  plaintiff  in  error  of  its 
property  without  due  process  of  law,  and  deny  to  it  the 
equal  protection  of  the  laws,  in  contravention  of  the  14th 
Amendment. 


338  MANUAL  OF  COMPENSATION  LAW 

The  first  point  assumes  that  the  deceased  was  employed 
in  interstate  commerce  at  the  time  he  received  the  fatal  in- 
juries. According  to  the  record,  he  was  a  night  watchman, 
charged  with  the  duty  of  guarding  tools  and  materials  in- 
tended to  be  used  in  the  construction  of  a  new  station  and 
new  tracks  upon  a  line  of  interstate  railroad.  The  Com- 
mission found,  upon  evidence  fully  warranting  the  find- 
ing, that  he  was  on  duty  at  the  time,  and  at  a  place  not  out- 
side of  the  limits  prescribed  for  the  performance  of  his 
duties;  that  he  was  not  engaged  in  interstate  commerce; 
and  that  the  injury  received  by  him  and  resulting  in  his 
death  was  an  accidental  injury  arising  out  of  and  in  the 
course  of  his  employment. 

The  admitted  fact  that  the  new  station  and  tracks  were 
designed  for  use,  when  finished,  in  interstate  commerce, 
does  not  bring  the  case  within  the  Federal  act.  The  test 
is,  "Was  the  employee  at  the  time  of  the  injury  engaged  in 
interstate  transportation,  or  in  work  so  closely  related  to 
it  as  to  be  practically  a  part  of  it?"  Shanks  v.  Delaware, 
L.  &  W.  R.  Co.,  239  U.  S.  556,  558,  60  L.  ed.  436,  438, 
L.  R.  A.  1916C  797,  36  Sup.  Ct.  Rep.  188.  Decedent's  work 
bore  no  direct  relation  to  interstate  transportation,  and  had 
to  do  solely  with  construction  work,  which  is  clearly  distin- 
guishable, as  was  pointed  out  in  Pedersen  v.  Delaware,  L. 
&  W.  R.  Co.  229  U.  S.  146,  152,  57  L.  ed.  1125,  1128,  33  Sup. 
Ct.  Rep.  648,  Ann.  Gas  1914C  153,  3  N.  C.  C.  A.  779.  And 
see  Chicago,  B.  &  Q.  R.  Co.  v.  Harrington,  241  U.  S.  177, 
180,  60  L.  ed.  941,  942,  36  Sup.  Ct.  Rep.  517,  11  N.  C.  C.  A. 
992 ;  Raymond  v.  Chicago,  M.  &  St.  P.  R.  Co.,  this  day  de- 
cided [243  U.  S.  — ,  post,  — ,  37  Sup.  Ct.  Rep.  —  ].  The  first 
point,  therefore,  is  without  basis  in  fact. 

We  turn  to  the  constitutional  question.  The  Workmen's 
Compensation  Law  of  New  York  establishes  forty-two 
groups  of  hazardous  employments,  defines  "employee"  as  a 
person  engaged  in  one  of  these  employments  upon  the  prem- 
ises, or  at  the  plant,  or  in  the  course  of  his  employment 
away  from  the  plant  of  his  employer,  but  excluding  farm 


GENERAL  TOPICS    ,  339 

laborers  and  domestic  servants;  defines  "employment"  as 
including  employment  only  in  a  trade,  business,  or  occupa- 
tion carried  on  by  the  employer  for  pecuniary  gain,  "injury" 
and  "personal  injury"  as  meaning  only  accidental  injuries 
arising  out  of  and  in  the  course  of  employment,  and  such 
disease  or  infection  as  naturally  and  unavoidably  may  re- 
sult therefrom;  and  requires  every  employer  subject  to  its 
provisions  to  pay  or  provide  compensation  according  to  a 
prescribed  schedule  for  the  disability  or  death  of  his  em- 
ployee resulting  from  an  accidental  personal  injury  arising 
out  of  and  in  the  course  of  the  employment,  without  regard 
to  fault  as  a  cause,  except  where  the  injury  is  occa- 
sioned by  the  willful  intention  of  the  injured  employee 
to  bring  about  the  injury  or  death  of  himself  or  of 
another,  or  where  it  results  solely  from  the  intoxication  of 
the  injured  employee  while  on  duty,  in  which  cases  neither 
the  injured  employee  nor  any  dependent  shall  receive  com- 
pensation. By  §  11  the  prescribed  liability  is  made  exclu- 
sive, except  that,  if  an  employer  fail  to  secure  the  payment 
of  compensation  as  provided  in  §  50,  an  injured  employee, 
or  his  legal  representative,  in  case  death  results  from  the 
injury,  may,  at  his  option,  elect  to  claim  compensation  un- 
der the  act,  or  to  maintain  an  action  in  the  courts  for  dam- 
ages, and  in  such  an  action  it  shall  not  be  necessary  to  plead 
or  prove  freedom  from  contributory  negligence,  nor  may 
the  defendant  plead  as  a  defense  that  the  injury  was  caused 
by  the  negligence  of  a  fellow  servant,  that  the  employee 
assumed  the  risk  of  his  employment,  or  that  the  injury 
was  due  to  contributory  negligence.  Compensation  under 
the  act  is  not  regulated  by  the  measure  of  damages  ap- 
plied in  negligence  suits,  but,  in  addition  to  providing  medi- 
cal, surgical,  or  other  like  treatment,  it  is  based  solely  on 
loss  of  earning  power,  being  graduated  according  to  the  av- 
erage weekly  wages  of  the  injured  employee  and  the  char- 
acter and  duration  of  the  disability,  whether  partial  or  to- 
tal, temporary  or  permanent ;  while  in  case  the  injury  causes 
death  the  compensation  is  known  as  a  death  benefit,  and 


340  MANUAL  OF  COMPENSATION  LAW 

includes  funeral  expenses,  not  exceeding  $100,  pay- 
ments to  the  surviving  wife  (or  dependent  hus- 
band) during  widowhood  (or  dependent  widowerhood)  of 
a  percentage  of  the  average  wages  of  the  deceased,  and  if 
there  be  a  surviving  child  or  children  under  the  age  of 
eighteen  years  an  additional  percentage  of  such  wages  for 
each  child  until  that  age  is  reached.  There  are  provisions 
invalidating  agreements  by  employees  to  waive  the  right 
to  compensation,  prohibiting  any  assignment,  release,  or 
commutation  of  claims  for  compensation  or  benefits  except 
as  provided  by  the  act,  exempting  them  from  the  claims 
of  creditors,  and  requiring  that  the  compensation  and  bene- 
fits shall  be  paid  only  to  employees  or  their  dependents. 
Provision  is  made  for  the  establishment  of  a  Workmen's 
Compensation  Commission  with  administrative  and  judic- 
ial functions,  including  authority  to  pass  upon  claims  to 
compensation  on  notice  to  the  parties  interested.  The  award 
or  decision  of  the  Commission  is  made  subject  to  an  ap- 
peal, on  questions  of  law  only,  to  the  appellate  division  of 
the  supreme  court  for  the  third  department,  with  an  ulti- 
mate appeal  to  the  court  of  appeals  in  cases  where  such 
an  appeal  would  lie  in  civil  actions.  A  fund  is  created, 
known  as  "the  state  insurance  fund,"  for  the  purpose  of 
insuring  employers  against  liability  under  the  law,  and  as- 
suring to  the  persons  entitled  the  compensation  thereby 
provided.  The  fund  is  made  up  primarily  of  premiums  re- 
ceived from  employers,  at  rates  fixed  by  the  Commission  in 
view  of  the  hazards  of  the  different  classes  of  employment, 
and  the  premiums  are  to  be  based  upon  the  total  pay  roll 
and  number  of  employees  in  each  class  at  the  lowest  rate 
consistent  with  the  maintenance  of  a  solvent  state  insur- 
ance fund  and  the  creation  of  a  reasonable  surplus  and  re- 
serve. Elaborate  provisions  are  laid  down  for  the  adminis- 
tration of  this  fund.  By  §  50,  each  employer  is  required  to 
secure  compensation  to  his  employees  in  one  of  the  follow- 
ing ways:  (1)  By  insuring  and  keeping  insured  the  payment 
of  such  compensation  in  the  state  fund ;  or  (2)  through  any 


GENERAL  TOPICS  341 

stock  corporation  or  mutual  association  authorized  to  trans- 
act the  business  of  workmen's  compensation  insurance  in 
the  state;  or  (3)  "by  furnishing  satisfactory  proof  to  the 
Commission  of  his  financial  ability  to  pay  such  compensa- 
tion for  himself,  in  which  case  the  Commission  may,  in 
its  discretion,  require  the  deposit  with  the  Commis- 
sion of  securities  of  the  kind  prescribed  in  §  13  of 
the  Insurance  Law,  in  an  amount  to  be  determined  by  the 
Commission  to  secure  his  liability  to  pay  the  compensation 
provided  in  this  chapter."  If  an  employer  fails  to  comply 
with  this  section,  he  is  made  liable  to  a  penalty  in  an  amount 
equal  to  the  pro  rata  premium  that  would  have  been  pay- 
able for  insurance  in  the  state  fund  during  the  period  of 
noncompliance ;  besides  which,  his  injured  employees  or 
their  dependents  are  at  liberty  to  maintain  an  action  for 
damages  in  the  courts,  as  prescribed  by  §  11. 

In  a  previous  year,  the  legislature  enacted  a  compulsory 
compensation  law  applicable  to  a  limited  number  of  specially 
hazardous  employments,  and  requiring  the  employer  to  pay 
compensation  without  regard  to  fault.  Laws  1910,  chap. 
674.  This  was  held  by  the  court  of  appeals  in  Ives  v.  South 
Buffalo  R.  Co.,  201  N.  Y.  271,  34  L.  R.  A.  (N.  S.)  162,  94 
N.  E.  431,  Ann.  Cas.  1912B  156,  1  N.  C.  C.  A.  517,  to  be 
invalid  because  in  conflict  with  the  due  process  of  law 
provisions  of  the  state  Constitution  and  of  the  14th  Amend- 
ment. Thereafter,  and  in  the  year  1913,  a  constitutional 
amendment  was  adopted,  effective  January  1,  1914,  declar- 
ing: 

"Nothing  contained  in  this  Constitution  shall  be  con- 
strued to  limit  the  power  of  the  legislature  to  enact  laws 
for  the  protection  of  the  lives,  health,  or  safety  of  em- 
ployees; or  for  the  payment,  either  by  employers,  or  by 
employers  and  employees  or  otherwise,  either  directly  or 
through  a  state  of  other  system  of  insurance  or  otherwise, 
of  compensation  for  injuries  to  employees  or  for  death  of 
employees  resulting  from  such  injuries  without  regard  to 
fault  as  a  cause  thereof,  except  where  the  injury  is  occa- 


342  MANUAL  OF  COMPENSATION  LAW 

sioned  by  the  willful  intention  of  the  injured  employee  to 
bring  about  the  injury  or  death  of  himself  or  of  another, 
or  where  the  injury  results  solely  from  the  intoxication 
of  the  injured  employee  while  on  duty;  or  for  the  adjust- 
ment, determination  and  settlement,  with  or  without  trial 
by  jury,  of  issues  which  may  arise  under  such  legislation; 
or  to  provide  that  the  right  of  such  compensation,  and  the 
remedy  therefor  shall  be  exclusive  of  all  other  rights  and 
remedies  for  injuries  to  employees  or  for  death  resulting 
from  such  injuries;  or  to  provide  that  the  amount  of  such 
compensation  for  death  shall  not  exceed  a  fixed  or  determi- 
nable  sum ;  provided  that  all  moneys  paid  by  an  employer  to 
his  employees  or  their  legal  representatives,  by  reason  of 
the  enactment  of  any  of  the  laws  herein  authorized,  shall 
be  held  to  be  a  proper  charge  in  the  cost  of  operating  the 
business  of  the  employer." 

In  December,  1913,  the  legislature  enacted  the  law  now 
under  consideration  (Laws  1913,  chap.  816),  and  in  1914 
re-enacted  it  (Laws  1914,  chap.  41)  to  take  effect  as  to 
payment  of  compensation  on  July  1  in  that  year.  The  act 
was  sustained  by  the  court  of  appeals  as  not  inconsistent 
with  the  14th  Amendment  in  Jensen  v.  Southern  P.  Co., 
215  N.  Y.  514,  L.  R.  A.  1916A  403,  109  N.  E.  600,  Ann  Gas. 
1916B,  276;  and  that  decision  was  followed  in  the  case  at 
bar. 

The  scheme  of  the  act  is  so  wide  a  departure  from  com- 
mon-law standards  respecting  the  responsibility  of  employer 
to  employee  that  doubts  naturally  have  been  raised  respect- 
ing its  constitutional  validity.  The  adverse  considerations 
urged  or  suggested  in  this  case  and  in  kindred  cases  sub- 
mitted at  the  same  time  are :  (a)  That  the  employer's  prop- 
erty is  taken  without  due  process  of  law,  because  he  is  sub- 
jected to  a  liability  for  compensation  without  regard  to  any 
neglect  or  default  on  his  part  or  on  the  part  of  any  other 
person  for  whom  he  is  responsible,  and  in  spite  of  the  fact 
that  the  injury  may  be  solely  attributable  to  the  fault  of 
the  employee;  (b)  that  the  employee's  rights  are  inter- 


GENERAL  TOPICS  343 

fered  with,  in  that  he  is  prevented  from  having  compensa- 
tion for  injuries  arising  from  the  employer's  fault  com- 
mensurate with  the  damages  actually  sustained,  and  is  lim- 
ited to  the  measure  of  compensation  prescribed  by  the  act; 
and  (c)  that  both  employer  and  employee  are  deprived  of 
their  liberty  to  acquire  property  by  being  prevented  from 
making  such  agreement  as  they  choose  respecting  the  terms 
of  the  employment. 

In  support  of  the  legislation,  it  is  said  that  the  whole 
common-law  doctrine  of  employer's  liability  for  negligence, 
with  its  defenses  of  contributory  negligence,  fellow  serv- 
ant's negligence,  and  assumption  of  risk,  is  based  upon  fic- 
tions, and  is  inapplicable  to  modern  conditions  of  employ- 
ment; that  in  the  highly  organized  and  hazardous  indus- 
tries of  the  present  day  the  causes  of  accident  are  often  so 
obscure  and  complex  that  in  a  material  proportion  of  cases 
it  is  impossible  by  any  method  correctly  to  ascertain  the 
facts  necessary  to  form  an  accurate  judgment,  and  in  a  still 
larger  proportion  the  expense  and  delay  required  for  such 
ascertainment  amount  in  effect  to  a  defeat  of  justice;  that, 
under  the  present  system,  the  injured  workman  is  left  to 
bear  the  greater  part  of  industrial  accident  loss,  which, 
because  of  his  limited  income,  he  is  unable  to  sustain,  so 
that  he  and  those  dependent  upon  him  are  overcome  by 
poverty  and  frequently  become  a  burden  upon  public  or  priv- 
ate charity ;  and  that  litigation  is  unduly  costly  and  tedious, 
-encouraging  corrupt  practices  and  arousing  antagonisms 
between  employers  and  employees. 

In  considering  the  constitutional  question,  it  is  neces- 
sary to  view  the  matter  from,  the  standpoint  of  the  em- 
ployee as  well  as  from  that  of  the  employer.  For,  while 
plaintiff  in  error  is  an  employer,  and  can  not  succeed  with- 
out showing  that  its  right  as  such  are  infringed  (Plymouth 
Coal  Co.  v.  Pennsylvania,  232  U.  S.  531,  544,  58  L.  ed,  713, 
719,  34  Sup.  Ct.  Rep.  359;  Jeffrey  Mfg.  Co.  v.  Blagg,  235 
U.  S.  571,  576,  59  L.  ed.  364,  368,  35  Sup.  Ct.  Rep.  167,  7 
N.  C.  C.  A.  570) ,  yet,  as  pointed  out  by  the  court  of  appeals 


344  MANUAL  OF  COMPENSATION  LAW 

in  the  Jensen  Case  (215  N.  Y.  526),  the  exemption  from 
further  liability  is  an  essential  part  of  the  scheme,  so  that 
the  statute,  if  invalid  as  against  the  employee,  is  invalid 
as  against  the  employer. 

The  close  relation  of  the  rules  governing  responsibility 
as  between  employer  and  employee  to  the  fundamental 
rights  of  liberty  and  property  is,  of  course,  recognized.  But 
those  rules,  as  guides  of  conduct,  are  not  beyond  alteration 
by  legislation  in  the  public  interest.  No  person  has  a  vested 
interest  in  any  rule  of  law,  entitling  him  to  insist  that  it 
shall  remain  unchanged  for  his  benefit.  Munn  v.  Illinois, 
94  U.  S.  113,  134,  24  L.  ed.  77,  87;  Hurtado  v.  California, 
110  U.  S.  516,  532,  28  L.  ed.  232,  237,  4  Sup.  Ct.  Rep.  Ill, 
292 ;  Martin  v.  Pittsburg  &  L.  E.  R.  Co.,  203  U.  S.  284,  294, 
51  L.  ed.  184,  191,  27  Sup.  Ct.  Rep.  100,  8  Ann.  Cas.  87; 
Second  Employers'  Liability  Cases  (Mondou  v.  New  York, 
N.  H.  &  H.  R.  Co.)  223  U.  S.  1,  50,  56  L.  ed..  327,  346,  38  L. 
R.  A.  (N.  S.)  44,  32  Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  875; 
Chicago  &  A.  R.  Co.  v.  Tranbarger,  238  U.  S.  67,  76,  59  L. 
ed.  1204,  1210,  35  Sup.  Ct.  Rep.  678.  The  common  law 
bases  the  employer's  liability  for  injuries  to  the  employee 
upon  the  ground  of  negligence;  but  negligence  is  merely 
the  disregard  of  some  duty  imposed  by  law ;  and  the  nature 
and  extent  of  the  duty  may  be  modified  by  legislation,  with 
corresponding  change  in  the  test  of  negligence.  Indeed, 
liability  may  be  imposed  for  the  consequences  of  a  failure 
to  comply  with  a  statutory  duty,  irrespective  of  negligence 
in  the  ordinary  sense ;  safety  appliance  acts  being  a  familiar 
instance.  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor,  210  U.  S. 
281,  295,  52  L.  ed.  1061,  1068,  28  Sup.  Ct.  Rep.  616,  21  Am. 
Neg.  Rep.  464 ;  Texas  &  P.  R.  Co.  v.  Rigsby,  241  U.  S.  33,  39, 
43,  60  L.  ed.  874,  877,  878,  36  Sup.  Ct.  Rep.  482. 

The  fault  may  be  that  of  the  employer  himself,  or  most 
frequently — that  of  another  for  whose  conduct  he  is  made 
responsible  according  to  the  maxim  respondeat  superior. 
In  the  latter  case  the  employer  may  be  entirely  blameless, 
may  have  exercised  the  utmost  human  foresight  to  safe- 


GENERAL  TOPICS  345 

guard  the  employee;  yet,  if  the  alter  ego,  while  acting 
within  the  scope  of  his  duties,  be  negligent, — in  disobedi- 
ence, it  may  be,  of  the  employer's  positive  and  specific  com- 
mand,— the  employer  is  answerable  for  the  consequences. 
It  can  not  be  that  the  rule  embodied  in  the  maxim  is  unalter- 
able by  legislation. 

The  immunity  of  the  employer  from  responsibility  to 
an  employee  for  the  negligence  of  a  fellow  employee  is  of 
comparatively  recent  origin,  it  being  the  product  of  the  ju- 
dicial conception  that  the  probability  of  a  fellow  workman's 
negligence  is  one  of  the  natural  and  ordinary  risks  of  the 
occupation,  assumed  by  the  employee  and  presumably  taken 
into  account  in  the  fixing  of  his  wages.  The  earliest  reported 
cases  are  Murray  v.  South  Carolina  R.  Co.,  (1841)  1  Mc- 
Mull.  L.  385,  398,  36  Am.  Dec.  268 ;  Farwell  v.  Boston  &  W. 
R.  Corp.,  (1842)  4  Met.  49,  57,  38  Am.  Dec.  339,  15  Am. 
Neg.  Gas.  407;  Hutchinson  v.  York,  N.  &  B.  R.  Co.,  (1850) 
L.  R.  5  Exch.  343,  351,  19  L.  J.  Exch.  N.  S.  296,  299,  14 
Jur.  837,  840,  6  Eng.  Ry.  &  C.  Cas.  580;  Wigmore  v.  Jay, 
(1850)  L.  R.  5  Exch.  354,  19  L.  J.  Exch  N.  S.  300,  14  Jur. 
838,  841 ;  Bartonshill  Coal  Co.  v.  Reid  (1858)  3  Macq.  H.  L. 
Cas.  266,  284,  295,  4  Jur.  N.  S.  767,  6  Week.  Rep.  664,  19 
Eng.  Rul.  Cas.  107.  And  see  Randall  v.  Baltimore  &  0.  R. 
Co.,  109  U.  S.  478,  483,  27  L.  ed.  1003,  1005,  3  Sup.  Ct.  Rep. 
322;  Northern  P.  R.  Co.  v.  Herbert,  116  U.  S.  642,  647,  29 
L.  ed.  755,  758,  6  Sup.  Ct.  Rep.  590.  The  doctrine  has  pre- 
vailed generally  throughout  the  United  States,  but  with 
material  differences  in  different  jurisdictions  respecting 
who  should  be  deemed  a  fellow  servant  and  who  a  vice 
principal  or  alter  ego  of  the  master,  turning  sometimes  up- 
on refined  distinctions  as  to  grades  and  departments  in  the 
employment.  See  Knutter  v.  New  York  &  N.  J.  Teleph. 
Co.,  67  N.  J.  L.  646,  650-653,  58  L.  R.  A.  808,  52  Atl.  565, 
12  Am.  Neg.  Rep.  109.  It  needs  no  argument  to  show  that 
such  a  rule  is  subject  to  modification  or  abrogation  by  a 
state  upon  proper  occasion. 

The  same  may  be  said  with  respect  to  the  general  doc- 


346  MANUAL  OF  COMPENSATION  LAW 

trine  of  assumption  of  risk.  By  the  common  law  the  em- 
ployee assumes  the  risks  normally  incident  to  the  occupa- 
tion in  which  he  voluntarily  engages;  other  and  extra- 
ordinary risks  and  those  due  to  the  employer's  negligence 
he  does  not  assume  until  made  aware  of  them,  or  until  they 
become  so  obvious  that  an  ordinarily  prudent  man  would 
observe  and  appreciate  them;  in  either  of  which  cases  he 
does  assume  them,  if  he  continues  in  the  employment  with- 
out obtaining  from  the  employer  an  assurance  that  the 
matter  will  be  remedied;  but  if  he  receive  such  an  assur- 
ance, then,  pending  performance  of  the  'promise,  the  em- 
ployee does  not,  in  ordinary  cases,  assume  the  special  risk 
Seaboard  Air  Line  R.  Co.  v.  Horton,  233  U.  S.  492,  504,  58 
L.  ed.  1062,  1070,  L.  R.  A.  1915C,  1  34  Sup.  Ct.  Rep.  635, 
Ann.  Gas.  1915B,  475,  8  N.  C.  C.  A.  834,  239  U.  S.  595,  599, 
60  L.  ed.  458,  461,  36  Sup.  Ct.  Rep.  180.  Plainly,  these  rules, 
as  guides  of  conduct  and  tests  of  liability,  are  subject  to 
change  in  the  exercise  of  the  sovereign  authority  of  the 
state. 

So,  also,  with  respect  to  contributory  negligence.  Aside 
from  injuries  intentionally  self-inflicted,  for  which  the  stat- 
ute under  consideration  affords  no  compensation,  it  is  plain 
that  the  rules  of  law  upon  the  subject  in  their  bearing 
upon  the  employer's  responsibility,  are  subject  to  legisla- 
tive change  for  contributory  negligence,  again,  involves  a 
default  in  some  duty  resting  on  the  employee,  and  his  duties 
are  subject  to  modification. 

It  may  be  added,  by  way  of  reminder,  that  the  entire 
matter  of  liability  for  death  caused  by  wrongful  act,  both 
within  and  without  the  relation  of  employer  and  employee, 
is  a  modern  statutory  innovation,  in  which  the  states  dif- 
fer as  to  who  may  sue,  for  whose  benefit,  and  the  measure 
of  damages. 

But  it  is  not  necessary  to  extend  the  discussion.  This 
court  repeatedly  has  upheld  the  authority  of  the  states  to 
establish  by  legislation  departures  from  the  fellow-serv- 
ant, rule  and  other  common-law  rules  affecting  the  employ- 


GENERAL  TOPICS  347 

er's  liability  for  personal  injuries  to  the  employee.  Missouri 
P.  R.  Co.  v.  Mackey,  127  U.  S.  205,  208,  32  L.  ed.  107,  108, 
8  Sup.  Ct.  Rep.  1161 ;  Minneapolis  &  St.  L.  R.  Co.  v.  Her- 
rick,  127  U.  S.  210,  32  L.  ed.  109,  8  Sup.  Ct.  Rep.  1176;  Min- 
nesota Iron  Co.  v.  Kline,  199  U.  S.  593,  598,  50  L.  ed.  322, 
325,  26  Sup.  Ct.  Rep.  159,  19  Am.  Neg  Rep.  625 ;  Tullis  v. 
Lake  Erie  &  W.  R.  Co.,  175  U.  S.  348,  44  L.  ed.  192,  20  Sup. 
Ct.  Rep.  136 ;  Louisville  &  N.  R.  Co.  v.  Melton,  218  U.  S.  36, 
53,  54  L.  ed.  921,  928,  47  L.  R.  A.  (N.  S.)  84,  30  Sup.  Ct. 
Rep.  676 ;  Chicago,  I  &  L.  R.  Co.  v.  Hackett,  228  U.  S.  559, 
57  L.  ed.  966,  33  Sup.  Ct.  Rep.  581 ;  Wilmington  Star  Min. 
Co.  v.  Fulton,  205  U.  S.  60,  73,  51  L.  ed.  708,  715,  27  Sup. 
Ct.  Rep.  412;  Missouri  P.  R.  Co.  v.  Castle,  224  U.  S.  541, 
544,  56  L.  ed.  875,  878,  32  Sup.  Ct.  Rep.  606.  A  correspond- 
ing power  on  the  part  of  Congress,  when  legislating  within 
its  appropriate  sphere,  was  sustained  in  Second  Employers' 
Liability  Cases  (Mondou  v.  New  York,  N.  H.  &  H.  R.  Co.) 
223  U.  S.  1,  56  L.  ed.  327,  38  L.  R.  A.  (N.  S.)  44,  32  Sup. 
Ct.  Rep.  169,  1  N.  C.  C.  A.  875.  And  see  El  Paso  &  N.  E.  R. 
Co.  v.  Gutierrez,  215  U.  S.  87,  97,  54  L.  ed.  106,  111,  30  Sup. 
Ct.  Rep.  21 ;  Baltimore  &  0.  R.  Co.  v.  Interstate  Commerce 
Commission,  221  U.  S.  612,  619,  55  L.  ed.  878,  883,  31  Sup. 
Ct.  Rep.  621. 

It  is  true  that  in  the  case  of  the  statutes  thus  sustained 
there  were  reasons  rendering  the  particular  departures  ap- 
propriate. Nor  is  it  necessary,  for  the  purposes  of  the  pres- 
ent case,  to  say  that  a  State  might,  without  violence  to  the 
constitutional  guaranty  of  "due  process  of  law,"  suddenly 
set  aside  all  common-law  rules  respecting  liability  as  be- 
tween employer  and  employee,  without  providing  a  reason- 
ably just  substitute.  Considering  the  vast  industrial  or- 
ganization of  the  state  of  New  York,  for  instance,  with 
hundreds  of  thousands  of  plants  and  millions  of  wage  earn- 
ers, each  employer,  on  the  one  hand,  having  embarked  his 
capital,  and  each  employee,  on  the  other,  having  taken  up 
his  particular  mode  of  earning  a  livelihood,  in  reliance  up- 
on the  probable  permanence  of  an  established  body  of  law 


348  MANUAL  OF  COMPENSATION  LAW 

governing  the  relation,  it  perhaps  may  be  doubted  whether 
the  state  could  abolish  all  rights  of  action,  on  the  one  hand, 
or  all  defenses,  on  the  other,  without  setting  up  something 
adequate  in  their  stead.  No  such  question  is  here  pre- 
sented, and  we  intimate  no  opinion  upon  it.  The  statute 
under  consideration  sets  aside  one  body  of  rules  only  to  es- 
tablish another  system  in  its  place.  If  the  employee  is  no 
longer  able  to  recover  as  much  as  before  in  case  of  being 
injured  through  the  employer's  negligence,  he  is  entitled 
to  moderate  compensation  in  all  cases  of  injury,  and  has  a 
certain  and  speedy  remedy  without  the  difficulty  and  ex- 
pense of  establishing  negligence  or  proving  the  amount  of 
the  damages.  Instead  of  assuming  the  entire  consequences 
of  all  ordinary  risks  of  the  occupation,  he  assumes  the  con- 
sequences, in  excess  of  the  scheduled  compensation,  of  risks 
ordinary  and  extraordinary.  On  the  other  hand,  if  the 
employer  is  left  without  defense  respecting  the  question 
of  fault,  he  at  the  same  time  is  assured  that  the  recovery 
is  limited,  and  that  it  goes  directly  to  the  relief  of  the  des- 
ignated beneficiary.  And  just  as  the  employee's  assump- 
tion of  ordinary  risks  at  common  law  presumably  was  taken 
into  account  in  fixing  the  rate  of  wages,  so  the  fixed  re- 
sponsibility of  the  employer,  and  the  modified  assumption 
of  risk  by  the  employee  under  the  new  system,  presumably 
will  be  reflected  in  the  wage  scale.  The  act  evidently  is  in- 
tended as  a  just  settlement  of  a  difficult  problem,  affecting 
one  of  the  most  important  of  social  relations,  and  it  is  to  be 
judged  in  its  entirety.  We  have  said  enough  to  demon- 
strate that,  in  such  an  adjustment,  the  particular  rules  of 
the  common  law  affecting  the  subject  matter  are  not  placed 
by  the  14th  Amendment  beyond  the  reach  of  the  lawmaking 
power  of  the  state;  and  thus  we  are  brought  to  the  ques- 
tion whether  the  method  of  compensation  that  is  established 
as  a  substitute  transcends  the  limits  of  permissible  state 
action. 

,  We  will  consider,  first,  the  scheme  of  compensation,  de- 


GENERAL  TOPICS  349 

f erring  for  the  present  the  question  of  the  manner  in  which 
the  employer  is  required  to  secure  payment. 

Briefly,  the  statute  imposes  liability  upon  the  employer 
to  make  compensation  for  disability  or  death  of  the  em- 
ployee resulting  from  accidental  personal  injury  arising 
out  of  and  in  the  course  of  the  employment,  without  regard 
to  fault  as  a  cause  except  where  the  injury  or  death  is  oc- 
casioned by  the  employee's  willful  intention  to  produce  it, 
or  where  the  injury  results  solely  from  his  intoxication 
while  on  duty ;  it  graduates  the  compensation  for  disability 
according  to  a  prescribed  scale  based  upon  the  loss  of  earn- 
ing power,  having  regard  to  the  previous  wage  and  the 
character  and  duration  of  the  disability ;  and  measures  the 
death  benefits  according  to  the  dependency  of  the  surviv- 
ing wife,  husband,  or  infant  children.  Perhaps  we  should 
add  that  it  has  no  retrospective  effect,  and  applies  only  to 
cases  arising  some  months  after  its  passage. 

Of  course,  we  can  not  ignore  the  question  whether  the 
new  arrangement  is  arbitrary  and  unreasonable,  from  the 
standpoint  of  natural  justice.  Respecting  this,  it  is  impor- 
tant to  be  observed  that  the  act  applies  only  to  disabling 
or  fatal  personal  injuries  received  in  the  course  of  hazard- 
ous employment  in  gainful  occupation.  Reduced  to  its  ele- 
ments, the  situation  to  be  dealt  with  is  this :  Employer  and 
employee,  by  mutual  consent,  engage  in  a  common  operation 
intended  to  be  advantageous  to  both,  the  employee  is  to 
contribute  his  personal  services,  and  for  these  is  to  re- 
ceive wages,  and,  ordinarily,  nothing  more;  the  employer  is 
to  furnish  plant,  facilities,  organization,  capital,  credit,  is  to 
control  and  manage  the  operation,  paying  the  wages  and 
other  expenses,  disposing  of  the  product  at  such  prices 
as  he  can  obtain,  taking  all  the -profits,  if  any  there  be,  and, 
of  necessity,  bearing  the  entire  losses.  In  the  nature 
of  things,  there  is  more  or  less  of  a  probability  that  the  em- 
ployee may  lose  his  life  through  some  accidental  injury 
arising  out  of  the  employment,  leaving  his  widow  or  chil- 
dren deprived  of  their  natural  support ;  or  that  he  may  sus- 


350  MANUAL  OF  COMPENSATION  LAW 

tain  an  injury  not  mortal,  but  resulting  in  his  total  or  par- 
tial disablement,  temporary  or  permanent,  with  correspond- 
ing impairment  of  earning  capacity.  The  physical  suffer- 
ing must  be  borne  by  the  employee  alone;  the  laws  of  na- 
ture prevent  this  from  being  evaded  or  shifted  to  another, 
and  the  statute  makes  no  attempt  to  afford  an  equivalent 
in  compensation.  But,  besides,  there  is  the  loss  of  earning 
power, — a  loss  of  that  which  stands  to  the  employee  as  his 
capital  in  trade.  This  is  a  loss  arising  out  of  the  business, 
and,  however  it  may  be  charged  up,  is  an  expense  of  the 
operation,  as  truly  as  the  cost  of  repairing  broken  machin- 
ery or  any  other  expense  that  ordinarily  is  paid  by  the  em- 
ployer. Who  is  to  bear  the  charge?  It  is  plain  that,  on 
grounds  of  natural  justice,  it  is  not  unreasonable  for  the 
state,  while  relieving  the  employer  from  responsibility  for 
damages  measured  by  common-law  standards  and  payable 
in  cases  where  he  or  those  for  whose  conduct  he  is  answer- 
able are  found  to  be  at  fault,  to  require  him  to  contribute 
a  reasonable  amount,  and  according  to  a  reasonable  and 
definite  scale,  by  way  of  compensation  for  the  loss  of  earn- 
ing power  incurred  in  the  common  enterprise,  irrespective 
of  the  question  of  negligence,  instead  of  leaving  the  entire 
loss  to  rest  where  it  may  chance  to  fall, — that  is,  upon  the 
injured  employee  or  his  dependents.  Nor  can  it  be  deemed 
arbitrary  and  unreasonable,  from  the  standpoint  of  the  em- 
ployee's interest,  to  supplant  a  system  under  which  he  as- 
sumed the  entire  risk  of  injury  in  ordinary  cases,  and  in 
others  had  a  right  to  recover  an  amount  more  or  less  specu- 
lative upon  proving  facts  of  negligence  that  often  were  dif- 
ficult to  prove,  and  substitute  a  system  under  which,  in  all 
ordinary  cases  of  accidental  injury,  he  is  sure  of  a  definite 
and  easily  ascertained  compensation,  not  being  obliged  to 
assume  the  entire  loss  in  any  case,  but  in  all  cases  assuming 
any  loss  beyond  the  prescribed  scale. 

Much  emphasis  is  laid  upon  the  criticism  that  the  act 
creates  liability  without  fault.  This  is  sufficiently  answered 
by  'what  has  been  said,  but  we  may  add  that  liability  with- 


GENERAL  TOPICS  351 

out  fault  is  not  a  novelty  in  the  law.  The  common-law  lia- 
bility of  the  carrier,  of  the  innkeeper,  or  him  who  employed 
fire  or  other  dangerous  agency  or  harbored  a  mischievous 
animal,  was  not  dependent  altogether  upon  questions  of 
fault  or  negligence.  Statutes  imposing  liability  without 
fault  have  been  sustained.  St.  Louis  &  S.  F.  R.  Co.  v.  Ma- 
thews,  165  U.  S.  1,  22,  41  L.  ed.  611,  619,  17  Sup.  Ct.  Rep. 
243 ;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Zernecke,  183  U.  S.  582, 
586,  46  L.  ed.  339,  340,  22  Sup.  Ct.  Rep.  229. 

We  have  referred  to  the  maxim,  respondeat  superior. 
In  a  well-known  English  case,  Hall  v.  Smith,  2  Bing.  156, 
160,  130  Eng.  Reprint,  265,  9  J.  B.  Moore  226,  2  L.  J.  C.  P. 
113,  this  maxim  was  said  by  Best,  Ch.  J.,  to  be  "bottomed 
on  this  principle,  that  he  who  expects  to  derive  advantage 
from  an  act  which  is  done  by  another  for  him,  must  answer 
for  any  injury  which  a  third  person  may  sustain  from  it." 
And  this  view  has  been  adopted  in  New  York.  Cardot  v. 
Barney,  63  N.  Y.  281,  287,  20  Am.  Rep.  533.  The  provision 
for  compulsory  compensation,  in  the  act  under  consider- 
ation, can  not  be  deemed  to  be  an  arbitrary  and  unreason- 
able application  of  the  principle,  so  as  to  amount  to  a  de- 
privation of  the  employer's  property  without  due  process 
of  law.  The  pecuniary  loss  resulting  from  the  employee's 
death  or  disablement  must  fall  somewhere.  It  results  from 
something  done  in  the  course  of  an  operation  from  which 
the  employer  expects  to  derive  a  profit.  In  excluding  the 
question  of  fault  as  a  catfse  of  the  injury,  the  act  in  effect 
disregards  the  proximate  cause  and  looks  to  one  more  re- 
mote,— the  primary  cause,  as  it  may  be  deemed, — and  that 
is,  the  employment  itself.  For  this,  both  parties  are  respon- 
sible, since  they  voluntarily  engage  in  it  as  coadventurers, 
with  personal  injury  to  the  employee  as  a  probable  and  fore- 
seen result.  In  ignoring  any  possible  negligence  of  the  em- 
ployee producing  or  contributing  to  the  injury,  the  law- 
maker reasonably  may  have  been  influenced  by  the  belief 
that,  in  modern  industry,  the  utmost  diligence  in  the  em- 
ployer's service  is  in  some  degree  inconsistent  with  ade- 


352  MANUAL  OF  COMPENSATION  LAW 

quate  care  on  the  part  of  the  employee  for  his  own  safety ; 
that  the  more  intently  he  devotes  himself  to  the  work, 
the  less  he  can  take  precautions  for  his  own  security.  And 
it  is  evident  that  the  consequences  of  a  disabling  or  fatal 
injury  are  precisely  the  same  to  the  parties  immediately 
affected,  and  to  the  community,  whether  the  proximate 
cause  be  culpable  or  innocent.  Viewing  the  entire  matter, 
it  can  not  be  pronounced  arbitrary  and  unreasonable  for  the 
state  to  impose  upon  the  employer  the  absolute  duty  of 
making  a  moderate  and  definite  compensation  in  money  to 
every  disabled  employee,  or,  in  case  of  his  death,  to  those 
who  were  entitled  to  look  to  him  for  support,  in  lieu  of  the 
common-law  liability  confined  to  cases  of  negligence. 

This,  of  course,  is  not  to  say  that  any  scale  of  compen- 
sation, however  insignificant,  on  the  one  hand,  or  onerous, 
on  the  other,  would  be  supportable.  In  this  case,  no  criti- 
cism is  made  on  the  ground  that  the  compensation  pre- 
scribed by  the  statute  in  question  is  unreasonable  in  amount, 
either  in  general  or  in  the  particular  case.  Any  question 
of  that  kind  may  be  met  when  it  arises. 

But,  it  is  said,  the  statute  strikes  at  the  fundamentals 
of  the  constitutional  freedom  of  contract;  and  we  are  re- 
ferred to  two  recent  declarations  by  this  court.  The  first 
is  this:  "Included  in  the  right  of  personal  liberty  and  the 
right  of  private  property — partaking  of  the  nature  of  each 
— is  the  right  to  make  contracts  for  the  acquisition  of  prop- 
erty. Chief  among  such  contracts  is  that  of  personal  em- 
ployment, by  which  labor  and  other  services  are  exchanged 
for  money  or  other  forms  of  property.  If  this  right  be 
struck  down  or  arbitrarily  interfered  with,  there  is  a  sub- 
stantial impairment  of  liberty  in  the  long-established  con- 
stitutional sense."  Coppage  v.  Kansas,  236  U.  S.  1,  14,  59 
L.  ed.  441,  446,  L.  R.  A.  1915C  960,  35  Sup.  Ct.  Rep.  240. 
And  this  is  the  other:  "It  requires  no  argument  to  show 
that  the  right  to  work  for  a  living  in  the  common  occupa- 
tions of  the  community  is  of  the  very  essence  of  the  person- 
al freedom  and  opportunity  that  it  was  the  purpose  of  the 


GENERAL  TOPICS  353 

[14th]  Amendment  to  secure."  Truax  v.  Raich,  239  U.  S. 
33,  41,  60  L.  ed.  131,  135,  L.  R.  A.  1916D,  545,  36  Sup.  Ct. 
Rep.  7. 

It  is  not  our  purpose  to  qualify  or  weaken  either  of  these 
declarations  in  the  least.    And  we  recognize  that  the  legis- 
lation under  review  does  measurably  limit  the  freedom  of 
employer  and  employee  to  agree  respecting  the  terms  of 
employment,  and  that  it  can  not  be  supported  except  on  the 
ground  that  it  is  a  reasonable  exercise  of  the  police  power 
of  the  state.    In  our  opinion  it  is  fairly  supportable  upon 
that  ground.  And  for  this  reason:  The  subject  matter  in 
respect  of  which  freedom  of  contract  is  restricted  is  the 
matter  of  compensation  for  human  life  or  limb  lost  or  dis- 
ability incurred  in  the  course  of  hazardous  employment, 
and  the  public  has  a  direct  interest  in  this  as  affecting  the 
common  welfare.  "The  whole  is  no  greater  than  the  sum  of 
all  the  parts,  and  when  the  individual  health,  safety,  and 
welfare  are  sacrificed  or  neglected,  the  state  must  suffer." 
Holden  v.  Hardy,  169  U.  S.  366,  397,  42  L.  ed.  780,  793,  18 
Sup.  Ct.  Rep.  383.    It  can  not  be  doubted  that  the  state  may 
prohibit  and  punish  self-maiming  and  attempts  at  suicide; 
it  may  prohibit  a  man  from  bartering  away  his  life  or  his 
personal  security;  indeed,  the  right  to  these  is  often  de- 
clared, in  bills  of  rights,  to  be  "natural  and  inalienable;" 
and  the  authority  to  prohibit  contracts  made  in  derogation 
of  a  lawfully-established  policy  of  the  state  respecting  com- 
pensdtion  for  accidental  death  or  disabling  personal  injury 
is  equally  clear.    Chicago,  B.  &  Q.  R.  Co  v.  McGuire,  219 
U.  S.  549,  571,  55  L.  ed.  328,  340,  31  Sup.  Ct.  Rep.  259; 
Second  Employers'  Liability  Cases  (Mondou  v.  New  York, 
N.  H.  &  H.  R.  Co.)  223  U.  S.  1,  52,  56  L.  ed.  327,  347,  38 
L.  R.  A.  (N.  S.)  44,  32  Sup.  Ct.  Rep.  169,  1  N.  C.  C.  A.  875. 
We  have  not  overlooked  the  criticism  that  the  act  im- 
poses no  rule  of  conduct  upon  the  employer  with  respect  to 
the  conditions  of  labor  in  the  various  industries  embraced 
within  its  terms,  prescribes  no  duty  with  regard  to  where 
the  workmen  shall  work,  the  character  of  the  machinery, 


354  MANUAL  OF  COMPENSATION  LAW 

tools,  or  appliances,  the  rules  or  regulations  to  be  estab- 
lished, or  the  safety  devices  to  be  maintained.  This  statute 
does  not  concern  itself  with  measures  of  prevention,  which 
presumably  are  embraced  in  other  laws.  But  the  interest 
of  the  public  is  not  confined  to  these.  One  of  the  grounds 
of  its  concern  with  the  continued  life  and  earning  power 
of  the  individual  is  its  interest  in  the  prevention  of  pauper- 
ism, with  its  concomitants  of  vice  and  crime.  And,  in  our 
opinion,  laws  regulating  the  responsibility  of  employers 
for  the  injury  or  death  of  employees,  arising  out  of  the  em- 
ployment, bear  so  close  a  relation  to  the  protection  of  the 
lives  and  safety  of  those  concerned  that  they  properly  may 
be  regarded  as  coming  within  the  category  of  police  regula- 
tions. Sherlock  v.  Ailing,  93  U.  S.  99,  103,  23  L.  ed.  819, 
820 ;  Missouri  P.  R.  Co.  v.  Castle,  224  U.  S.  541,  545,  56  L. 
ed.  875,  879,  32  Sup.  Ct.  Rep.  606. 

No  question  is  made  but  that  the  procedural  provisions 
of  the  act  are  amply  adequate  to  afford  the  notice  and  op- 
portunity to  be  heard  required  by  the  14th  Amendment. 
The  denial  of  a  trial  by  jury  is  not  inconsistent  with  "due 
process."  Walker  v.  Sauvinet,  92  U.  S.  90,  23  L.  ed.  678; 
Frank  v.  Mangum,  237  U.  S.  309,  340,  59  L.  ed.  960,  985,  35 
Sup.  Ct.  Rep.  582. 

The  objection  under  the  "equal  protection"  clause  is  not 
pressed.  The  only  apparent  basis  for  it  is  in  the  exclusion 
of  farm  laborers  and  domestic  servants  from  the  scheme. 
But,  manifestly,  this  can  not  be  judicially  declared  to  be  an 
arbitrary  classification,  since  it  reasonably  may  be  con- 
sidered that  the  risks  inherent  in  these  occupations  are  ex- 
ceptionally patent,  simple,  and  familiar.  Missouri,  K.  &  T. 
R.  Co.  v.  Cade,  233  U.  S.  642,  650,  58  L.  ed.  1135,  1137,  34 
Sup.  Ct.  Rep.  678,  and  cases  there  cited. 

We  conclude  that  the  prescribed  scheme  of  compulsory 
compensation  is  not  repugnant  to  the  provisions  of  the  14th 
Amendment,  and  are  brought  to  consider,  next,  the  man- 
ner in  which  the  employer  is  required  to  secure  payment 
of,  the  compensation.  By  §  50,  this  may  be  done  in  one  of 


GENERAL  TOPICS  355 

three  ways:  (a)  State  insurance;  (b)  insurance  with  an 
authorized  insurance  corporation  or  association;  or  (c)  by 
a  deposit  of  securities.  The  record  shows  that  the  pred- 
ecessor of  plaintiff  in  error  chose  the  third  method,  and, 
with  the  sanction  of  the  Commission,  deposited  securities 
to  the  amount  of  $300,000,  under  §  50,  and  $30,000  in  cash 
as  a  deposit  to  secure  prompt  and  convenient  payment,  un- 
der §  25,  with  an  agreement  to  make  a  further  deposit  if 
required.  This  was  accompanied  with  a  reservation  of  all 
contentions  as  to  the  invalidity  of  the  act,  and  had  not  the 
effect  of  preventing  plaintiff  in  error  from  raising  the  ques- 
tions we  have  discussed. 

The  system  of  compulsory  compensation  having  been 
found  to  be  within  the  power  of  the  state,  it  is  within  the 
limits  of  permissible  regulation,  in  aid  of  the  system,  to 
require  the  employer  to  furnish  satisfactory  proof  of  his 
financial  ability  to  pay  the  compensation,  and  to  deposit  a 
reasonable  amount  of  securities  for  that  purpose.  The 
third  clause  of  §  50  has  not  been,  and  presumably  will  not 
be,  construed  so  as  to  give  an  unbridled  discretion  to  the 
Commission;  nor  is  it  to  be  presumed  that  solvent  employ- 
ers will  be  prevented  from  becoming  self -insurers  on  reason- 
able terms.  No  question  is  made  but  that  the  terms  im- 
posed upon  this  railroad  company  were  reasonable  in  view 
of  the  magnitude  of  its  operations,  the  number  of  its  em- 
ployees, and  the  amount  of  its  pay  roll  (about  $50,000,000 
annually) ;  hence  no  criticism  of  the  practical  effect  of  the 

third  clause  is  suggested. 

• 

This  being  so,  it  is  obvious  that  this  case  presents  no 
question  as  to  whether  the  state  might,  consistently  with 
the  14th  Amendment,  compel  employers  to  effect  insurance 
according  to  either  of  the  plans  mentioned  in  the  first  and 
second  clauses.  There  is  no  such  compulsion,  since  self- 
insurance  under  the  third  clause  presumably  is  open  to  all 
employers  on  reasonable  terms  that  it  is  within  the  power 
of  the  state  to  impose.  Regarded  as  optional  arrangements, 
for  acceptance  or  rejection  by  employers  unwilling  to  com- 


356  MANUAL  OF  COMPENSATION  LAW 

ply  with  that  clause,  the  plans  of  insurance  are  unexcep- 
tionable from  the  constitutional  standpoint.  Manifestly,  the 
employee  is  not  injuriously  affected  in  a  constitutional  sense 
by  the  provisions  giving  to  the  employer  an  option  to  secure 
payment  of  the  compensation  in  either  of  the  modes  pre- 
scribed, for  there  is  no  presumption  that  either  will  prove 
inadequate  to  safeguard  the  employee's  interests. 
Judgment  affirmed. 


J.  C.  HAWKINS,  Appt., 

V. 

JOHN  L.  BLEAKLY,  ET  AL. 
-  U.  S.  — ,  37  Sup.  Ct.  Rep.  255. 

An  appeal  from  the  District  Court  of  the  United  States 
for  the  Southern  District  of  Iowa  to  review,  a  decree  dis- 
missing a  suit  to  restrain  the  enforcement  of  the  Iowa 
Workmen's  Compensation  Act.  Affirmed. 

See  same  case  below,  220  Fed.  378. 

The  facts  are  stated  in  the  opinion. 

Messrs.  Robert  Ryan,  James  P.  Hewitt,  and  F.  G.  Ryan 
for  appellant. 

Messrs.  Henry  E.  Sampson  and  John  T.  Clarkson,  and 
Mr.  George  Cosson,  Attorney  General  of  Iowa,  for  appellees. 

Mr.  Justice  Pitney  delivered  the  opinion  of  the  court: 

This  is  a  suit  in  equity,  brought  by  ^appellant  in  the 
United  States  district  court,  to  restrain  the  enforcement  of 
an  act  of  the  general  assembly  of  the  state  of  Iowa,  ap- 
proved April  18,  1913,  relating  to  employers'  liability  and 
workmen's  compensation;  it  being  chap.  147  of  Laws  of 
Iowa,  35  G.  A.;  embraced  in  Iowa  Code,  Supp.  of  1913,  § 
2477m.  The  bill  sets  forth  that  complainant  is  an  employer 
of  laborers  within  the  meaning  of  the  act,  but  has  rejected 
its  provisions,  alleges  that  the  statute  is  in  contravention 
of -the  Federal  and  state  constitutions,  etc.,  etc.  A  motion 


GENERAL  TOPICS  357 

to  dismiss  was  sustained  by  the  district  court  (220  Fed. 
378),  and  the  case  comes  here  by  direct  appeal,  because  of 
the  constitutional  question,  under  §  238,  Judicial  Code  [36 
Stat.  at  L.  1157,  chap.  231,  Comp.  Stat.  1913,  §  1215]. 

Since  the  decision  below,  the  supreme  court  of  Iowa, 
in  an  able  and  exhaustive  opinion,  has  sustained  the  act 
against  all  constitutional  objections,  at  the  same  time  con- 
struing some  of  its  provisions.  Hunter  v.  Colfax  Consol. 
Coal  Co.,  --  Iowa,  — ,  L.  R.  A.  — ,  — ,  154  N.  W.  1037,  157 
N.  W.  145,  11  N.  C.  C.  A.  886.  Hence  no  objection  under 
the  state  constitution  is  here  pressed,  and  we,  of  course, 
accept  the  construction  placed  upon  the  act  by  the  state 
court  of  last  resort. 

As  to  private  employers,  it  is  an  elective  workmen's 
compensation  law,  having  the  same  general  features  found 
in  the  recent  legislation  of  many  of  the  states,  sustained 
by  their  courts.  See  Opinion  of  Justices,  209  Mass.  607, 
96  N.  E.  308, 1  N.  C.  C.  A.  557 ;  Young  v.  Duncan,  218  Mass. 
346,  106  N.  E.  1 ;  Borgnis  v.  Falk  Co.,  147  Wis.  327,  37  L. 
R.  A.  (N.  S.)  489,  133  N.  W.  209,  3  N.  C.  C.  A.  649;  State 
ex  rel.  Yaple  v.  Creamer,  85  Ohio  St.  349,  39  L.  R.  A.  (N. 
S.)  694,  97  N.  E.  602,  1  N.  C.  C.  A.  30;  Jeffrey  Mfg.  Co.  v. 
Blagg,  235  U.  S.  571,  59  L.  ed.  364,  35  Sup.  Ct.  Rep.  167,  7 
N.  C.  C.  A.  570 ;  Sexton  v.  Newark  Dist.  Teleg.  Co.,  84  N.  J. 
L.  85,  86  Atl.  451,  3  N.  C.  C.  A.  569,  86  N.  J.  L.  701,  91  Atl. 
1070 ;  Deibeikis  v.  Link-Belt  Co.,  261  111.  454,  104  N.  E.  211, 
Ann.  Cas.  1915A,  241,  5  N.  C.  C.  A.  401;  Crooks  v.  Taze- 
well  Coal  Co.,  263  111.  343,  105  N.  E.  132,  Ann.  Cas.  1915C 
304,  5  N.  C.  C.  A.  410 ;  Victor  Chemical  Works  v.  Industrial 
Board,  274  111.  11,  113  N.  E.  173;  Matheson  v.  Minneapolis 
Street  R.  Co.,  126  Minn.  286,  L.  R.  A.  1916D  412,  148  N.  W. 
71,  5  N.  C.  C.  A.  871 ;  Shade  v.  Ash  Grove  Lime  &  Portland 
Cement  Co.,  92  Kan.  146,  139  Pac.  1193,  5  N.  C.  C.  A.  763, 
93  Kan.  257,  144  Pac.  249;  Sayles  v.  Foley,  --  R.  I.  — ,  96 
Atl.  340;  Greene  v.  Caldwell,  170  Ky.  571,  186  S.  W.  648; 
Middleton  v.  Texas  Power  &  Light  Co.,  --  Tex.  — ,  185  S. 
W.  556,  11  N.  C.  C.  A.  873.  The  main  purpose  of  the  act 


358  MANUAL  OF  COMPENSATION  LAW 

is  to  establish,  in  all  employments  except  those  of  house- 
hold servants,  farm  laborers,  and  casual  employees,  a  sys- 
tem of  compensation  according  to  a  prescribed  schedule 
for  all  employees  sustaining  injuries  arising  out  of  and  in 
the  course  of  the  employment,  and  producing  temporary  or 
permanent  disability,  total  or  partial,  and,  in  case  of  death 
resulting  from  such  injuries,  a  contribution  towards  the 
support  of  those  dependent  upon  the  earnings  of  the  em- 
ployee; the  compensation  in  either  case  to  be  paid  by  the 
employer  in  lieu  of  other  liability,  and  acceptance  of  the 
terms  of  the  act  being  presumed  unless  employer  or  em- 
ployee gives  notice  of  an  election  to  reject  them.  To  this 
main  purpose  no  constitutional  objection  is  raised,  the  at- 
tack being  confined  to  particular  provisions  of  the  law. 

Some  of  appellant's  objections  are  based  upon  the  ground 
that  the  employer  is  subjected  to  a  species  of  duress  in 
order  to  compel  him  to  accept  the  compensation  features 
of  the  act,  since  it  is  provided  that  an  employer  rejecting 
these  features  shall  not  escape  liability  for  personal  injury 
sustained  by  an  employee,  arising  out  of  and  in  the  usual 
course  of  the  employment,  because  the  employee  assumed 
the  risks  of  the  employment,  or  because  of  the  employee's 
negligence,  unless  this  was  willful  and  with  intent  to  cause 
the  injury,  or  was  the  result  of  intoxication,  or  because  the 
injury  was  caused  by  the  negligence  of  a  coemployee.  But 
it  is  clear,  as  we  have  pointed  out  in  New  York  C.  R.  Co.  v. 
White,  No.  320,  decided  this  day,  243  U.  S.  — ,  ante,  247, 
37  Sup.  Ct.  Rep.  247,  that  the  employer  has  no  vested  right 
to  have  these  so-called  common-law  defenses  perpetuated 
for  his  benefit,  and  that  the  14th  Amendment  does  not  pre- 
vent a  state  from  establishing  a  system  of  workmen's  com- 
pensation without  the  consent  of  the  employer,  incidentally 
abolishing  the  defenses  referred  to. 

The  same  may  be  said  as  to  the  provision  that,  in  an  ac- 
tion against  an  employer  who  has  rejected  the  act,  it  shall 
be  presumed  that  the  injury  was  the  direct  result  of  his 
negligence,  and  that  he  must  assume  the  burden  of  proof  to 


GENERAL  TOPICS  359 

rebut  the  presumption  of  negligence.  In  addition,  we  may 
repeat  that  the  establishment  of  presumptions,  and  of  rules 
respecting  the  burden  of  proof,  is  clearly  within  the  domain 
of  the  state  governments,  and  that  a  provision  of  this  char- 
acter, not  unreasonable  in  itself,  and  not  conclusive  of  the 
rights  of  the  party,  does  not  constitute  a  denial  of  due  pro- 
cess of  law.  Mobile,  J.  &  K.  C.  R.  Co.  v.  Turnipseed,  219 
U.  S.  35,  42,  55  L.  ed.  78,  79,  32  L.  R.  A.  (N.  S.)  226,  31  Sup. 
Ct.  Rep.  436,  Ann.  Cas.  1912A  463,  2  N.  C.  C.  A.  243. 

Objection  is  made  to  the  provision  in  §  3,  that  where  an 
employee  elects  to  reject  the  act  he  shall  state  in  an  affi- 
davit who,  if  anybody,  requested  or  suggested  that  he 
should  do  so,  and  if  it  be  found  that  the  employer  or  his 
agent  made  such  a  request  or  suggestion,  the  employee  shall 
be  conclusively  presumed  to  have  been  unduly  influenced, 
and  his  rejection  of  the  act  shall  be  void.  Passing  the  point 
that  appellant  is  an  employer,  and  will  not  be  heard  to  raise 
constitutional  objections  that  are  good  only  from  the  stand- 
paint  of  employees  (New  York  ex  rel.  Hatch  v.  Reardon, 
204  U.  S.  152,  160,  51  L.  ed.  415,  422,  27  Sup.  Ct.  Rep.  188, 
9  Ann.  Cas.  736;  Rosenthal  v.  New  York,  226  U.  S.  260,  271, 
57  L.  ed.  212,  217,  33  Sup.  Ct.  Rep.  27,  Ann.  Cas  1914B  71 ; 
Plymouth  Coal  Co.  v.  Pennsylvania,  232  U.  S.  531,  544,  58 
L.  ed.  713,  719,  34  Sup.  Ct.  Rep.  359 ;  Jeffrey  Mfg.  Co.  v. 
Blagg,  235  U.  S.  571,  576,  59  L.  ed.  364,  368,  35  Sup.  Ct.  Rep. 
167,  7  N.  C.  C.  A.  570;  Hendrick  v.  Maryland,  235  U.  S.  610, 
621,  59  L.  ed.  385,  390,  35  Sup.  Ct.  Rep.  140),  it  is  sufficient 
to  say  that  the  criticised  provision  evidently  is  intended  to 
safeguard  the  employee  from  all  influences  that  might  be 
exerted  by  the  employer  to  bring  about  his  dissent  from 
the  compensation  features  of  the  act.  The  lawmaker  no 
doubt  entertained  the  view  that  the  act  was  more  bene- 
ficial to  employees  than  the  common-law  rules  of  employer's 
liability,  and  that  it  was  highly  improbable  an  employee 
would  reject  the  new  arrangement  of  his  own  free  will.  The 
provision  is  a  permissible  regulation  in  aid  of  the  general 
scheme  of  the  act. 


360  MANUAL  OF  COMPENSATION  LAW 

It  is  said  that  there  is  a  denial  of  due  process  in  that 
part  of  the  act  which  provides  for  the  adjustment  of  the 
compensation  where  the  employer  accepts  its  provisions. 
In  case  of  disagreement  between  an  employer  and  an  in- 
jured employee,  either  party  may  notify  the  Industrial 
Commissioner,  who  thereupon  shall  call  for  the  formation 
of  an  arbitration  committee  consisting  of  three  persons, 
with  himself  as  chairman.  The  committee  is  to  make  such 
inquiries  and  investigations  as  it  shall  deem  necessary,  and 
its  report  is  to  be  filed  with  the  Industrial  Commissioner. 
If  a  claim  for  review  is  filed,  the  Commissioner,  and  not  the 
committee,  is  to  hear  the  parties,  may  hear  evidence  in  re- 
gard to  pertinent  matters,  and  may  revise  the  decision  of 
the  committee  in  whole  or  in  part,  or  refer  the  matter  back 
to  the  committee  for  further  findings  of  fact.  And  any 
party  in  interest  may  present  the  order  or  decision  of  the 
Commissioner,  or  the  decision  of  an  arbitration  commit- 
tee from  which  no  claim  for  review  has  been  filed,  to  the 
district  court  of  the  county  in  which  the  injury  occurred, 
whereupon  the  court  shall  render  a  decree  in  accordance 
therewith,  having  the  same  effect  as  if  it  were  rendered 
in  a  suit  heard  and  determined  by  the  court,  except  that 
there  shall  be  no  appeal  upon  questions  of  fact  or  where  the 
decree  is  based  upon  an  order  or  decision  of  the  Commis- 
sioner which  has  not  been  presented  to  the  court  within  ten 
days  after  the  notice  of  the  filing  thereof  by  the  Commis- 
sioner. With  respect  to  these  provisions,  the  supreme 
court  of  Iowa  held  (154  N.  W.  1064)  :  "Appeal  is  provided 
from  the  decree  enforcing  the  award  on  which  all  save 
pure  questions  of  fact  may  be  reviewed.  .  .  .  We  hold 
that  though  the  act  does  not  in  terms  provide  for  judicial 
review,  except  by  said  appeal,  the  statute  does  not  take  from 
the  courts  all  jurisdiction  in  the  premises.  .  .  .  We  are 
in  no  doubt  that  the  very  structure  of  the  law  of  the  land, 
and  the  inherent  power  of  the  courts,  would  enable  them 
to  interfere,  if  what  we  have  defined  to  be  the  jurisdiction 
conferred  upon  the  arbitration  committee  were  by  it  ex- 


GENERAL  TOPICS  361 

ceeded — could  inquire  whether  the  act  was  being  enforced 
against  one  who  had  rejected  it,  whether  the  claiming  em- 
ployee was  an  employee,  whether  he  was  injured  at  all, 
whether  his  injury  was  one  arising  out  of  such  employment, 
whether  it  was  due  to  intoxication  of  the  servant,  or  self- 
inflicted,  or,  acceptance  being  conceded,  into  whether  an 
award  different  from  the  statute  schedules  had  been  made, 
into  whether  the  award  were  tainted  with  fraud  on  part  of 
the  prevailing  party,  or  of  the  arbitration  committee,  and 
into  whether  that  body  attempted  judicial  functions,  in 
violation  of  or  not  granted  by  the  act."  Thus  it  will  be  seen 
that  the  act  prescribes  the  measure  of  compensation  and 
the  circumstances  under  which  it  is  to  be  made,  and  es- 
tablishes administrative  machinery  for  applying  the  statu- 
tory measure  to  the  facts  of  each  particular  case;  provides 
for  a  hearing  before  an  administrative  tribunal,  and  for  ju- 
dicial review  upon  all  fundamental  and  jurisdictional  ques- 
tions. This  disposes  of  the  contention  that  the  administra- 
tive body  is  clothed  with  an  arbitrary  and  unbridled  dis- 
cretion, inconsistent  with  a  proper  conception  of  due  pro- 
cess of  law.  Plymouth  Coal  Co.  v.  Pennsylvania,  232  U.  S. 
531,  545,  58  L.  ed.  713,  719,  34  Sup.  Ct.  359. 

Objection  is  made  that  the  act  dispenses  with  trial  by 
jury.  But  it  is  settled  that  this  is  not  embraced  in  the 
rights  secured  by  the  14th  Amendment.  Walker  v.  Sauvi- 
net,  92  U.  S.  90,  23  L.  ed.  678 ;  Frank  v.  Mangum,  237  U. 
S.  309,  340,  59  L.  ed.  969,  35  Sup.  Ct.  Rep.  582;  New  York 
C.  R.  Co.  v.  White,  243  U.  S.  — ,  ante,  247,  37  Sup.  Ct.  Rep. 
247. 

It  is  elaborately  argued  that,  aside  from  the  14th 
Amendment,  the  inhabitants  of  the  state  of  Iowa  are  en- 
titled to  this  right,  because  it  was  guaranteed  by  the  Ordi- 
nance of  July  13,  1787,  for  the  government  of  the  North- 
west Territory  (1  Stat.  at  L.  51,  note),  in  these  terms: 
"The  inhabitants  of  the  said  territory  shall  always  be  en- 
titled to  the  benefits  of  ....  the  trial  by  jury."  The 
argument  is  rested,  first,  upon  the  ground  that  Iowa  was 


362  MANUAL  OF  COMPENSATION  LAW 

a  part  of  the  Northwest  Territory.  This  is  manifestly  un- 
tenable, since  that  territory  was  bounded  on  the  west  by 
the  Mississippi  river,  and  Iowa  was  not  a  part  of  it,  but  of 
the  Louisiana  Purchase.  But,  secondly,  it  is  contended 
that  the  guaranties  contained  in  the  ordinance  were  ex- 
tended to  Iowa  by  the  act  of  Congress  approved  June  12, 
1838,  establishing  a  territorial  government  (chap.  96,  §  12, 
5  Stat.  at  L.  235,  239),  and  by  the  act  for  the  admission 
of  the  state  into  the  Union.  Acts  of  March  3,  1845,  chaps. 
48  and  76,  5  Stat.  at  L.  742,  789 ;  Act  of  August  4,  1846, 
chap.  82,  9  Stat.  at  L.  52 ;  Act  of  December  28,  1846,  chap. 
1,  9  Stat.  at  L.  117;  1  Poore,  Charters  &  Const.  331,  534, 
535,  551.  This  is  easily  disposed  of.  The  Act  of  1838  was 
no  more  than  a  regulation  of  territory  belonging  to  the 
United  States,  subject  to  repeal  like  any  such  regulation; 
and  the  act  for  admitting  the  state,  so  far  from  perpetuat- 
ing any  particular  institution  previously  established,  ad- 
mitted it  "on  an  equal  footing  with  the  original  states  in 
all  respects  whatsoever."  The  regulation,  although  em- 
bracing provisions  of  the  ordinance  declared  to  be  unalter- 
able unless  by  common  consent,  had  no  further  force  in 
Iowa  after  its  admission  as  a  state  and  the  adoption  of  a 
state  Constitution,  than  other  acts  of  Congress  for  the  gov- 
ernment of  the  territory.  All  were  superseded  by  the  state 
Constitution.  Permoli  v.  New  Orleans,  3  How.  589,  610, 
11  L.  ed.  739,  748 ;  Coyle  v.  Smith,  221  U.  S.  559,  567,  570, 
55  L.  ed.  853,  858,  859,  31  Sup.  Ct.  Rep.  688 ;  Cincinnati  v. 
Louisville  &  N.  R.  Co.,  223  U.  S.  390,  401,  56  L.  ed.  481,  484, 
32  Sup.  Ct.  Rep.  267.  The  state  of  Iowa,  therefore,  is  as 
much  at  liberty  as  any  other  state  to  abolish  or  limit  the 
right  of  trial  by  jury;  or  to  provide  for  a  waiver  of  that 
right,  as  it  has  done  by  the  act  under  consideration. 

Section  5  is  singled  out  for  criticism,  as  denying  to  em- 
ployers the  equal  protection  of  the  laws.  It  reads :  "Where 
the  employer  ar»rl  employee  elect  to  reject  the  terms,  con- 
ditions and  provisions  of  this  act,  the  liability  of  the  em- 
ployer shall  be  the  same  as  though  the  employee  had  not  re- 


GENERAL  TOPICS  363 

jected  the  terms,  conditions  and  provisions  thereof."  As 
we  have  shown,  if  the  employer  rejects  the  act,  he  remains 
liable  for  personal  injury  sustained  by  an  employee,  arising 
out  of  and  in  the  usual  course  of  the  employment,  and  is 
not  to  escape  by  showing  that  he  had  exercised  reasonable 
care  in  selecting  competent  employees  in  the  business,  or 
that  the  employee  had  assumed  the  risk,  or  that  the  injury 
was  caused  by  the  negligence  of  a  coemployee,  or  even  by 
showing  that  the  plaintiff  was  negligent,  unless  such  negli- 
gence was  willful  and  with  intent  to  cause  the  injury,  or 
was  the  result  of  intoxication  on  the  part  of  the  injured 
party.  This  is  the  result  whether  the  employee  on  his 
part  accepts  or  rejects  the  act.  But  where  the  employee 
rejects  it  and  the  employer  accepts  it,  then,  by  §  3b,  "the 
employer  shall  have  the  right  to  plead  and  rely  upon  any 
and  all  defenses  including  those  at  common  law,  and  the 
rules  and  defenses  of  contributory  negligence,  assumption 
of  risk  and  fellow  servant  shall  apply  and  be  available  to 
the  employer  as  by  statute  authorized  unless  otherwise 
provided  in  this  act;"  with  a  proviso  not  material  to  the 
present  point.  We  can  not  say  that  there  is  here  an  arbi- 
trary classification  within  the  inhibition  of  the  "equal  pro- 
tection" clause  of  the  14th  Amendment.  All  employers  are 
treated  alike,  and  so  are  all  employees ;  and  if  there  be  some 
difference  as  between  employer  and  employee  respecting 
the  inducements  that  are  held  out  for  accepting  the  compen- 
sation features  of  the  act,  it  goes  no  further  than  to  say 
that,  if  neither  party  is  willing  to  accept  them,  the  em- 
ployer's liability  shall  not  be  subject  to  either  of  the  sev- 
eral defenses  referred  to.  As  already  shown,  the  abolition 
of  such  defenses  is  within  the  power  of  the  state,  and  the 
legislation  can  not  be  condemned  when  that  power  has  been 
qualifiedly  exercised,  without  unreasonable  discrimination. 
Section  42  of  the  act  provides:  "Every  employer,  subject 
to  the  provisions  of  this  act,  shall  insure  his  liability  there- 
under in  some  corporation,  association  or  organization  .ap- 
proved by  the  state  department  of  insurance 


364  MANUAL  OF  COMPENSATION  LAW 

And  if  such  employer  refuses,  or  neglects  to  comply  with 
this  section,  he  shall  be  liable  in  case  of  injury  to  any  work- 
man in  his  employ  under  part  one  (1)  of  this  act."  The  su- 
preme court  of  Iowa,  in  the  Hunter  Case,  said  of  §  42  (154 
N.  W.  1056) :  "This  clearly  shows  that  no  employer  is  com- 
pelled to  insure  unless  he  has  accepted,  and  thus  become 
subject  to,  the  act;"  proceeding,  however,  to  discuss  the 
case  further  upon  the  hypothesis  that  all  employers  named 
in  the  act  were  compelled  to  maintain  insurance.  In  view 
of  the  construction  adopted,  it  is  unnecessary  for  us  to  pass 
upon  the  question  of  compulsory  insurance  in  this  case,  ap- 
pellant not  having  accepted  the  act. 

Other  contentions  are  advanced,  but  they  are  without 
merit  and  call  for  no  particular  mention. 

Decree  affirmed. 


MOUNTAIN  TIMBER  COMPANY,  Plff.  in  Err., 

V. 

STATE  OF  WASHINGTON. 
_  u.  S.  — ,  37  Sup.  Ct.  Rep.  260. 

In  error  to  the  Supreme  Court  of  the  State  of  Washing- 
ton to  review  a  judgment  which  affirmed  a  judgment  of  the 
Superior  Court  of  Cowlitz  County,  in  that  state,  in  favor  of 
the  state  in  an  action  to  recover  certain  premiums  alleged 
to  be  due  under  the  Workmen's  Compensation  Act.  Af- 
firmed. 

See  same  case  below,  75  Wash.  581,  L.  R.  A.  — ,  — ,  135 
Pac.  645,  4  N.  C.  C.  A.  811. 

The  facts  are  stated  in  the  opinion. 

Messrs.  F.  Markoe  Rivinus,  Theodore  W.  Reath,  Coy 
Burnett  and  Edmund  C.  Strode  for  plaintiff  in  error. 

Mr.  W.  V.  Tanner,  Attorney  General  of  Washington,  for 
defendant  in  error. 

Mr.  Justice  Pitney  delivered  the  opinion  of  the  court : 


GENERAL  TOPICS  365 

This  was  an  action  brought  by  the  state  against  plaintiff 
in  error,  a  corporation  engaged  in  the  business  of  logging 
timber  and  operating  a  logging  railroad  and  a  sawmill  hav- 
ing power-driven  machinery,  all  in  the  state  of  Washing- 
ton, to  recover  under  chap.  74  of  the  Laws  of  1911, 
known  as  the  Workmen's  Compensation  Act,  certain  pre- 
miums based  upon  a  percentage  of  the  estimated  pay  roll  of 
the  workmen  employed  by  plaintiff  in  error  during  the  three 
months  beginning,  October  1,  1911.  Plaintiff  in  error  by 
demurrer  raised  objections  to  the  act,  based  upon  the  Con- 
stitution of  the  United  States.  The  Supreme  Court  of 
Washington,  overruled  them,  and  affirmed  a  judgment  in 
favor  of  the  state  (75  Wash.  581,  L.  R.  A.  — ,  — ,  135  Pac. 
645,  4  N.  C.  C.  A.  811),  following  its  previous  decision  in 
State  ex  rel.  Davis-Smith  Co.  v.  Clausen,  65  Wash.  156, 
37  L.  R.  A.  (N.  S.)  466,  117  Pac.  1101,  2  N.  C.  C.  A.  823,  3 
N.  C.  C.  A.  599;  and  the  case  comes  here  under  §  237,  Ju- 
dicial Code  [36  Stat.  at  L.  1156,  chap.  231,  Comp.  Stat.  1913, 
§  1214]. 

The  act  establishes  a  state  fund  for  the  compensation  of 
workmen  injured  in  hazardous  employment,  abolishes,  ex- 
cept in  a  few  specified  cases,  the  action  at  law  by  employee 
against  employer  to  recover  damages  on  the  ground  of  neg- 
ligence, and  deprives  the  courts  of  jurisdiction  over  such 
controversies.  It  is  obligatory  upon  both  employers  and 
employees  in  the  hazardous  employments,-  and  the  state 
fund  is  maintained  by  compulsory  contributions  from  em- 
ployers in  such  industries,  and  is  made  the  sole  source  of 
compensation  for  injured  employees  and  for  the  depend- 
ents of  those  whose  injuries  result  in  death.  We  will  recite 
its  provisions  to  an  extent  sufficient  to  show  the  character 
of  the  legislation. 

The  first  section  contains  a  declaration  of  policy,  recit- 
ing that  the  common-law  system  governing  the  remedy  of 
workmen  against  employers  for  injuries  received  in  hazard- 
ous work  is  inconsistent  with  modern  industrial  conditions, 
and  in  practice  proves  to  be  economically  unwise  and  un- 


366  MANUAL  OF  COMPENSATION  LAW 

fair;  that  the  remedy  of  the  workman  has  been  uncertain, 
slow,  and  inadequate;  that  injuries  in  such  employments, 
formerly  occasional,  have  become  frequent  and  inevitable; 
and  that  the  welfare  of  the  state  depends  upon  its  indus- 
tries, and  even  more  upon  the  welfare  of  its  wage  workers. 
"The  state  of  Washington,  therefore,  exercising  herein  its 
police  and  sovereign  power,  declares  that  all  phases  of  the 
premises  are  withdrawn  from  private  controversy,  and  sure 
and  certain  relief  for  workmen,  injured  in  extra  hazardous 
work,  and  their  families  and  dependents  is  hereby  provided 
regardless  of  questions  of  fault  and  to  the  exclusion  of 
every  other  remedy,  proceeding  or  compensation,  except  as 
otherwise  provided  in  this  act ;  and  to  that  end  all  civil  ac- 
tions and  civil  causes  of  action  for  such  personal  injuries 
and  all  jurisdiction  of  the  courts  of  the  state  over  such 
causes  are  hereby  abolished,  except  as  in  this  act  provided." 
The  second  section,  declaring  that  while  there  is  a  haz- 
ard in  all  employment,  certain  employments  are  recognized 
as  being  inherently  constantly  dangerous,  enumerates  those 
intended  to  be  embraced  within  the  term  "extra  hazardous," 
including  factories,  mills,  and  workshops  where  machinery 
is  used,  printing,  electrotyping,  photoengraving  and  stereo- 
typing plants  where  machinery  is  used ;  foundries,  blast  fur- 
naces, mines,  wells,  gas  works,  waterworks,  reduction  works, 
breweries,  elevators,  wharves,  docks,  dredges,  smelters, 
powder  works,  logging,  lumbering  and  shipbuilding  oper- 
ations, logging,  street,  and  interurban  railroads,  steam- 
boats, railroads,  and  a  number  of  others;  at  the  same  time 
declaring  that  if  there  be  or  arise  any  extra  hazardous  oc- 
cupation not  enumerated,  it  shall  come  under  the  act,  and 
its  rate  of  contribution  to  the  accident  fund  shall  be  fixed 
by  the  department  created  by  the  act  upon  the  basis  of 
the  relation  which  the  risk  involved  bears  to  the  risks  clas- 
sified, until  the  rate  shall  be  fixed  by  legislation.  The  third 
section  contains  a  definition  of  terms,  and,  among  them: 
"Workman  means  every  person  in  this  state,  who,  after 
September  30,  1911,  is  engaged  in  the  employment  of  an 


GENERAL  TOPICS  367 

employer  carrying  on  or  conducting  any  of  the  industries 
scheduled  or  classified  in  §  4,  whether  by  way  of  manual 
labor  or  otherwise,  and  whether  upon  the  premises  or  at 
the  plant,  or,  he  being  in  the  course  of  his  employment, 
away  from  the  plant  of  his  employer;"  with  a  proviso  giv- 
ing to  a  workman  injured  while  away  from  the  plant 
through  the  negligence  or  wrong  of  another  not  in  the  same 
employ,  or,  if  death  result  from  the  injury,  to  his  widow, 
children,  or  dependents,  an  election  whether  to  take  under 
the  act  or  to  seek  a  remedy  against  the  third  party.  "In- 
jury'' is  defined  as  an  injury  resulting  from  some  fortuitous 
event,  as  distinguished  from  the  contraction  of  disease. 

Section  4  contains  a  schedule  of  contribution,  reciting 
that  industry  should  bear  the  greater  portion  of  the  burden 
of  the  cost  of  its  accidents,  and  requiring  each  employer 
prior  to  January  15th  of  each  year  to  pay  into  the  state 
treasury,  in  accordance  with  the  schedule,  a  sum  equal  to 
a  percentage  of  his  total  pay  roll  for  the  year,  "the  same  be- 
ing deemed  the  most  accurate  method  of  equitable  distribu- 
tion of  burden  in  proportion  to  relative  hazard."  The  appli- 
cation of  the  act  as  between  employers  and  workmen  is  made 
to  date  from  the  first  day  of  October,  1911,  the  payment  for 
that  year  to  be  made  prior  to  that  date  and  upon  the  basis 
of  the  pay  roll  of  the  last  preceding  three  months  of  oper- 
ation. At  the  end  of  each  year  an  adjustment  of  accounts 
is  to  be  made  upon  the  basis  of  the  actual  pay  roll.  The 
schedule  divides  the  various  occupations  into  groups,  and 
imposes  various  percentages  upon  the  different  groups, 
the  lowest  being  11/2  per  cent,  in  the  case  of  the  textile 
industries,  creameries,  printing  establishments,  etc.,  and 
the  highest  being  10  per  cent,  in  the  case  of  powder  works. 
The  same  section  establishes  forty-seven  different  classes 
of  industry,  and  declares: 

"For  the  purpose  of  such  payments  accounts  shall  be 
kept  with  each  industry  in  accordance  with  the  classifica- 
tion herein  provided  and  no  class  shall  be  liable  for  the  de- 
pletion of  the  accident  fund  from  accidents  happening  in 


368  MANUAL  OF  COMPENSATION  LAW 

any  other  class.    Each  class  shall  meet  and  be  liable  for  the 
accidents  occurring  in  such  class.  There  shall  be  collected 
from  each  class  as  an  initial  payment  into  the  accident  fund 
as  above  specified  on  or  before  the  1st  day  of  October,  1911, 
one-fourth  of  the  premium  of  the  next  succeeding  year,  and 
one-twelfth  thereof  at  the  close  of  each  month  after  Decem- 
ber, 1911 :  Provided,  any  class  having  sufficient  funds  cred- 
ited to  its  account  at  the  end  of  the  first  three  months  or 
any  month  thereafter,  to  meet  the  requirements  of  the  acci- 
dent fund,  that  class  shall  not  be  called  upon  for  such  month. 
In  case  of  accidents  occurring  in  such  class  after  lapsed  pay- 
ment or  payments  said  class  shall  pay  the  said  lapsed  or 
deferred  payments  commencing  at  the  first  lapsed  pay- 
ment, as  may  be  necessary  to  meet  such  requirements  of  the 
accident  fund.    The  fund  thereby  created  shall  be  termed 
the  'accident  fund'  which  shall  be  devoted  exclusively  to 
the  purpose  specified  for  it  in  this  act.    In  that  the  intent 
is  that  the  fund  created  under  this  section  shall  ultimately 
become  neither  more  nor  less  than  self-supporting,  exclu- 
sive of  the  expense  of  administration,  the  rates  in  this  sec- 
tion named  are  subject  to  future  adjustment  by  the  legisla- 
ture, and  the  classifications  to  rearrangement  following  any 
relative  increase  or  decrease  of  hazard  shown  by  experi- 
ence.    .    ,     .     If,  after  this  act  shall  have  come  into  oper- 
ation, it  is  shown  by  experience  under  the  act,  because  of 
poor  or  careless  management,  any  establishment  or  work 
is  unduly  dangerous  in  comparison  with  other  like  estab- 
lishments or  works,  the  department  may  advance  its  classi- 
fication of  risks  and  premium  rates  in  proportion  to  the 
undue  hazard.    In  accordance  with  the  same  principle,  any 
such  increase  in  classification  or  premium  rate  shall  be 
subject  to  restoration  to  the  schedule  rate.     .     .     If,  at  the 
end  of  any  year,  it  shall  be  seen  that  the  contribution  to 
the  accident  fund  by  any  class  of  industry  shall  be  less  than 
the  drain  upon  the  fund  on  account  of  that  class,  the  de- 
ficiency shall  be  made  good  to  the  fund  on  the  first  day  of 
February  of  the  following  year  by  the  employers  of  that 


GENERAL  TOPICS  369 

class  in  proportion  to  their  respective  payments  for  the  past 
year." 

Section  5  contains  a  schedule  of  the  compensation  to  be 
awarded  out  of  the  accident  fund  to  each  injured  workman, 
or  to  his  family  or  dependents  in  case  of  his  death,  and  de- 
clares that  except  as  in  the  act  otherwise  provided,  such 
payment  shall  be  in  lieu  of  any  and  all  rights  of  action 
against  any  person  whomsoever.  Where  death  results  from 
the  injury,  the  compensation  includes  the  expenses  of  bur- 
ial, not  exceeding  $75  in  any  case,  a  monthly  payment  of 
$20  for  the  widow  or  invalid  widower,  to  cease  at  re-mar- 
riage, and  $5  per  month  for  each  child  under  the  age  of 
sixteen  years  until  that  age  is  reached,  but  not  exceeding 
$35  in  all,  with  a  lump  sum  of  $240  to  a  widow  upon  her  re- 
marriage; if  the  workman  leaves  no  wife  or  husband,  but 
a  child  or  children  under  the  age  of  sixteen  years,  there  is  to 
be  a  monthly  payment  of  $10  to  each  child  until  that  age  is 
reached ;  but  not  exceeding  a  total  of  $35  per  month ;  if  there 
be  no  widow,  widower,  or  child  under  the  age  of  sixteen 
years,  other  dependent  relatives  are  to  receive  monthly 
payments  equal  to  50  per  cent  of  the  average  monthly  sup- 
port actually  received  by  such  dependent  from  the  workman 
during  the  twelve  months  next  preceding  his  injury,  but  not 
exceeding  a  total  of  $20  per  month.  For  permanent  total 
disability  of  a  workman,  he  is  to  receive,  if  unmarried,  $20 
or,  if  married,  $25  per  month,  with  $5  per  month  additional 
for  each  child  under  the  age  of  sixteen  years,  but  not  ex- 
ceeding $35  per  month  in  all.  (Section  7  provides  that  the 
monthly  payment,  in  case  of  death  or  permanent  total  dis- 
ability, may  be  converted  into  a  lump  sum  payment,  not  in 
any  case  exceeding  $4,000,  according  to  the  expectancy  of 
life.)  For  temporary  total  disability  there  is  a  somewhat 
different  scale,  compensation  to  cease  when  earning  power 
is  restored.  For  permanent  partial  disability  the  workman 
is  to  receive  compensation  in  a  lump  sum  equal  to  the  ex- 
tent of  the  injury,  but  not  exceeding  $1,500. 

By  §  6,  if  injury  or  death  results  to  a  workman  from  his 


370  MANUAL  OF  COMPENSATION  LAW 

deliberate  intention  to  produce  it,  neither  he  nor  his  widow, 
child  or  dependents  shall  receive  any  payment  out  of  the 
fund.  If  injury  or  death  results  to  a  workman  from  the 
deliberate  intention  of  the  employer  to  produce  it,  the 
workman  or  his  widow,  child,  or  dependent  shall  have  the 
privilege  to  take  under  the  act,  and  also  have  a  cause  of 
action  against  the  employer  for  any  excess  of  damage  over 
the  amount  receivable  under  the  act. 

By  §  19  provision  is  made  for  the  adoption  of  the  act 
by  the  joint  election  of  any  employer  and  his  employees 
engaged  in  works  not  extra  hazardous.  By  §  21,  the  In- 
dustrial Insurance  Department  is  created,  consisting  of 
three  commissioners.  By  §  20,  a  judicial  review  is  given, 
in  the  nature  of  an  appeal  to  the  superior  court,  from  any 
decision  of  the  department  upon  questions  of  fact  or  of  the 
proper  application  of  the  act,  but  not  upon  matters  resting 
in  the  discretion  of  the  department.  Other  sections  pro- 
vide for  matters  of  detail,  and  §  11  renders  void  any  agree- 
ment by  employer  or  workman  to  waive  the  benefit  of  the 
act. 

From  this  recital  it  will  be  clear  that  the  fundamental 
purpose  of  the  act  is  to  abolish  private  rights  of  action  for 
damages  to  employees  in  the  hazardous  industries  (and  in 
any  other  industry,  at  the  option  of  employer  and  em- 
ployees), and  to  substitute  a  system  of  compensation  to  in- 
jured workmen  and  their  dependents  out  of  a  public  fund 
established  and  maintained  by  contributions  required  to  be 
made  by  the  employers  in  proportion  to  the  hazard  of  each 
class  of  occupation. 

While  plaintiff  in  error  is  an  employer,  and  can  not  suc- 
ceed without  showing  that  its  constitutional  rights  as  em- 
ployer are  infringed  (Plymouth  Coal  Co.  v.  Pennsylvania, 
232  U.  S.  531,  544,  58  L.  ed.  713,  719,  34  Sup.  Ct.  Rep.  359 ; 
Jeffrey  Mfg.  Co.  v.  Blagg,  235  U.  S.  571,  576,  59  L.  ed.  364, 
368,  35  Sup.  Ct.  Rep.  167,  7  N.  C.  C.  A.  570),  yet  it  is  evi- 
dent that  the  employer's  exemption  from  liability  to  private 
action  is  an  essential  part  of  the  legislative  scheme  and 


GENERAL  TOPICS  371 

the  quid  pro  quo  for  the  burdens  imposed  upon  him,  so  that 
if  the  act  is  not  valid  as  against  employees,  it  is  not  valid 
as  against  employers. 

However,  so  far  as  the  interests  of  employees  and  their 
dependents  are  concerned,  this  act  is  not  distinguishable  in 
any  point  raising  a  constitutional  difficulty  from  the  New 
York  Workmen's  Compensation  Act,  sustained  in  New 
York  C.  R.  Co.  v.  White,  decided  this  day  [243  U.  S.  — , 
ante,  247,  37  Sup.  Ct.  Rep.  247].  It  is  true  that  in  the  Wash- 
ington act  the  state  fund  is  the  sole  source  from  which  the 
compensation  shall  be  paid,  whereas  the  New  York  act  gives 
to  the  employer  an  option  to  secure  the  compensation  either 
through  state  insurance,  insurance  with  an  authorized  in- 
surance corporation,  or  by  a  deposit  of  securities  with  the 
state  Commission.  But  we  find  here  no  ground  for  a  dis- 
tinction unfavorable  to  the  Washington  law. 

So  far  as  employers  are  concerned,  however,  there  is  a 
marked  difference  between  the  two  laws,  because  of  the  en- 
forced contributions  to  the  state  fund  that  are  character- 
istic of  the  Washington  act,  and  it  is  upon  this  feature  that 
the  principal  stress  of  the  argument  for  plaintiff  in  error 
is  laid. 

Two  of  the  constitutional  objections  may  be  disposed  of 
briefly.  It  is  urged  that  the  law  violates  §  4  of  article  4 
of  the  Constitution  of  the  United  States,  guarantying  to 
every  state  in  the  Union  a  republican  form  of  government. 
As  has  been  decided  repeatedly,  the  question  whether  this 
guaranty  has  been  violated  is  not  a  judicial  but  a  political 
question,  committed  to  Congress,  and  not  to  the  courts. 
Luther  v.  Borden,  7  How.  1,  39,  42,  12  L.  ed.  581,  597,  599; 
Pacific  States  Teleph.  &  Teleg.  Co.  v.  Oregon,  223  U.  S.  118, 
56  L.  ed.  377,  32  Sup.  Ct.  Rep.  224;  Kiernan  v.  Portland, 
223,  U.  S.  151,  56  L.  ed.  386,  32  Sup.  Ct.  Rep.  231 ;  Marshall 
v.  Dye,  231  U.  S.  250,  256,  58  L.  ed.  206,  207,  34  Sup.  Ct. 
Rep.  92;  Ohio  ex  rel.  Davis  v.  Hildebrandt,  241  U.  S.  565, 
60  L.  ed.  1172,  36  Sup.  Ct.  Rep.  708. 

The  7th  Amendment,  with  its  provision  for  preserving 


372  MANUAL  OF  COMPENSATION  LAW 

the  right  of  trial  by  jury,  is  invoked.  It  is  conceded  that 
this  has  no  reference  to  proceedings  in  the  state  courts 
(Minneapolis  &  St.  L.  R.  Co.  v.  Bombolis,  241,  U.  S.  211, 
217,  60  L.  ed.  961,  963,  L.  R.  A.  1917A,  86,  36  Sup.  Ct.  Rep. 
595),  but  it  is  urged  that  the  question  is  material  for  the 
reason  that  if  the  act  be  constitutional  it  must  be  followed 
in  the  Federal  courts  in  cases  that  are  within  its  provis- 
ions. So  far  as  private  rights  of  action  are  preserved,  this 
is  no  doubt  true ;  but,  with  respect  to  those  we  find  nothing 
in  the  act  that  excludes  a  trial  by  jury.  As  between  em- 
ployee and  employer,  the  act  abolishes  all  right  of  recovery 
in  ordinary  cases,  and  therefore  leaves  nothing  to  be  tried 
by  jury. 

The  only  serious  question  is  that  which  is  raised  under 
the  "due  process  of  law"  and  "equal  protection"  clauses  of 
the  14th  Amendment.  It  is  contended  that  since  the  act 
unconditionally  requires  employers  in  the  enumerated  oc- 
cupations to  make  payments  to  a  fund  for  the  benefit  of 
employees,  without  regard  to  any  wrongful  act  of  the  em- 
ployer, he  is  deprived  of  his  property,  and  of  his  liberty 
to  acquire  property,  without  compensation  and  without  due 
process  of  law.  It  is  pointed  out  that  the  occupations  cov- 
ered include  many  that  are  private  in  their  character,  as 
well  as  others  that  are  subject  to  regulation  as  public  em- 
ployments, and  it  is  argued  that,  with  respect  to  private 
occupations  (including  those  of  plaintiff  in  error),  a  com- 
pulsory compensation  act  does  not  concern  the  interests 
of  the  public  generally,  but  only  the  particular  interests  of 
the  employees,  and  is  unduly  oppressive  upon  employers, 
and  arbitrarily  interferes  with  and  restricts  the  manage- 
ment of  private  business  operations. 

The  statute,  although  approved  March  14,  1911,  took 
effect  as  between  employers  and  workmen  on  October  1  in 
that  year,  actions  pending  and  causes  of  action  existing  on 
September  30  being  expressly  saved.  It  therefore  disturbed 
no  vested  rights,  its  effect  being  confined  to  regulating  the 


GENERAL  TOPICS  373 

relation  of  employer  and  employee  in  the  hazardous  occu- 
pations in  future. 

If  the  legislation  could  be  regarded  merely  as  substitut-1 
ing  one  form  of  employer's  liability  for  another,  the  points 
raised  against  it  would  be  answered  sufficiently  by  our 
opinion  in  New  York  C.  R.  Co.  v.  White,  243  U.  S.  — ,  ante, 
247,  37  Sup.  Ct.  Rep.  247,  where  it  is  pointed  out  that  the 
common-law  rule  confining  the  employer's  liability  to  cases 
of  negligence  on  his  part  or  on  the  part  of  others  for  whose 
conduct  he  is  made  answerable,  the  immunity  from  respon- 
sibility to  an  employee  for  the  negligence  of  a  fellow  em- 
ployee, and  the  defenses  of  contributory  negligence  and  as- 
sumed risk,  are  rules  of  law  that  are  not  beyond  alteration 
by  legislation  in  the  public  interest;  that  the  employer  has 
no  vested  interest  in  them  nor  any  constitutional  right  to 
insist  that  they  shall  remain  unchanged  for  his  benefit; 
and  that  the  states  are  not  prevented  by  the  14th  Amend- 
ment, while  relieving  employers  from  liability  for  damages 
measured  by  common-law  standards  and  payable  in  cases 
where  they  or  others  for  whose  conduct  they  are  answerable 
are  found  to  be  at  fault,  from  requiring  them  to  contribute 
reasonable  amounts  and  according  to  a  reasonable  and 
definite  scale  by  way  of  compensation  for  the  loss  of  earn- 
ing power  arising  from  accidental  injuries  to  their  em- 
ployees, irrespective  of  the  question  of  negligence,  instead 
of  leaving  the  entire  loss  to  rest  where  it  may  chance  to 
fall;  that  is,  upon  particular  injured  employees  and  their 
dependents. 

But  the  Washington  law  goes  further,  in  that  the  en- 
forced contributions  of  the  employer  are  to  be  made 
whether  injuries  have  befallen  his  own  employees  or  not; 
so  that,  however  prudently  one  may  manage  his  business, 
even  to  the  point  of  immunity  to  his  employees  from  acci- 
dental injury  or  death,  he  nevertheless  is  required  to  make 
periodical  contributions  to  a  fund  for  making  compensation 
to  the  injured  employees  of  his  perhaps  negligent  competi- 
tors. 


374  MANUAL  OF  COMPENSATION  LAW 

In  the  present  case  the  supreme  court  of  Washington 
(75  Wash.  581,  583)  sustained  the  law  as  a  legitimate  ex- 
ercise of  the  police  power,  referring  at  the  same  time  to  its 
previous  decision  in  the  Clausen  Case  (65  Wash.  156,  203, 
207),  which  was  rested  principally  upon  that  power,  but  al- 
so (pp.  203,  207)  sustained  the  charges  imposed  upon  em- 
ployers engaged  in  the  specified  industries  as  possessing 
the  character  of  a  license  tax  upon  the  occupation,  partak- 
ing of  the  dual  nature  of  a  tax  for  revenue  and  a  tax  for 
purposes  of  regulation.  We  are  not  here  concerned  with 
any  mere  question  of  construction,  nor  with  any  distinction 
between  the  police  and  the  taxing  powers.  The  question 
whether  a  state  la'w  deprives  a  party  of  rights  secured  by 
the  Federal  Constitution  depends  not  upon  how  it  is  char- 
acterized, but  upon  its  practical  operation  and  effect.  Hen- 
derson v.  New  York  (Henderson  v.  Wickham) ,  92  U.  S.  259, 
268,  23  L.  ed.  543,  547 ;  Stockard  v.  Morgan,  185  U.  S.  27, 
36,  46  L.  ed.  785,  794,  22  Sup.  Ct.  Rep.  576 ;  Galveston,  H. 
&  S.  A.  R.  Co.  v.  Texas,  210  U.  S.  217,  227,  52  L.  ed.  1031, 
1037,  28  Sup.  Ct.  Rep.  638 ;  Western  U.  Teleg.  Co.  v.  Kan- 
sas, 216  U.  S.  1,  28,  30,  54  L.  ed.  355,  366,  367,  30  Sup.  Ct. 
Rep.  190 ;  Ludwig  v.  Western  U.  Teleg.  Co.,  216  U.  S.  146, 
162,  54  L.  ed.  423,  429,  30  Sup.  Ct.  Rep.  280;  St.  Louis 
Southwestern  R.  Co.  v.  Arkansas,  235  U.  S.  350,  362,  59  L. 
ed.  265,  271,  35  Sup.  Ct.  Rep.  99.  And  the  Federal  Consti- 
tution does  not  require  a  separate  exercise  by  the  states  of 
their  powers  of  regulation  and  of  taxation.  Gundling  v. 
Chicago,  177  U.  S.  183,  189,  44  L.  ed.  725,  729,  20  Sup.  Ct. 
Rep.  633. 

Whether  this  legislation  be  regarded  as  a  mere  exercise 
of  power  of  regulation,  or  as  a  combination  of  regulation 
and  taxation,  the  crucial  inquiry  under  the  14th  Amend- 
ment is  whether  it  clearly  appears  to  be  not  a  fair  and  rea- 
sonable exertion  of  governmental  power,  but  so  extrava- 
gant or  arbitrary  as  to  constitute  an  abuse  of  power.  All 
reasonable  presumptions  are  in  favor  of  its  validity,  and 
the  burden  of  proof  and  argument  is  upon  those  who  seek 


GENERAL  TOPICS  375 

to  overthrow  it.  Erie  R.  Co.  v.  Williams,  233  U.  S.  685, 
699,  58  L.  ed.  1155,  1160,  51  L.  R.  A.  (N.  S.)  1097,  34  Sup. 
Ct.  Rep.  761.  In  the  present  case  it  will  be  proper  to  con- 
sider: (1)  Whether  the  main  object  of  the  legislation  is, 
or  reasonably  may  be  deemed  to  be,  of  general  and  public 
moment,  rather  than  of  private  and  particular  interest,  so 
as  to  furnish  a  just  occasion  for  such  interference  with  per- 
sonal liberty  and  the  right  of  acquiring  property  as  neces- 
sarily must  result  from  carrying  it  into  effect.  (2) 
Whether  the  charges  imposed  upon  employers  are  reason- 
able in  amount,  or,  on  the  other  hand,  so  burdensome  as  to 
be  manifestly  oppressive.  And  (3)  whether  the  burden 
is  fairly  distributed,  having  regard  to  the  causes  that  give 
rise  to  the  need  for  the  legislation. 

As  to  the  first  point:  'The  authority  of  the  states  to 
enact  such  laws  as  reasonably  are  deemed  to  be  necessary 
to  promote  the  health,  safety,  and  general  welfare  of  their 
people  carries  with  it  a  wide  range  of  judgment  and  discre- 
tion as  to  what  matters  are  of  sufficiently  general  impor- 
tance to  be  subjected  to  state  regulation  and  administra- 
tion. Lawton  v.  Steele,  152  U.  S.  133,  136,  38  L.  ed.  385, 
388,  14  Sup.  Ct.  Rep.  499.  "The  police  power  of  a  state  is 
as  broad  and  plenary  as  its  taxing  power."  Kidd  v.  Pear- 
son, 128  U.  S.  1,  26,  32  L.  ed.  346,  352,  2  Inters.  Com.  Rep. 
232,  9  Sup.  Ct.  Rep.  6.  In  Barbier  v.  Connolly,  113  U.  S. 
27,  31,  28  L.  ed.  923,  924,  5  Sup.  Ct.  Rep.  357,  the  court,  by 
Mr.  Justice  Field,  said:  "Neither  the  [14th]  Amendment 
— broad  and  comprehensive  as  it  is — nor  any  other  Amend- 
ment, was  designed  to  interfere  with  the  power  of  the  state, 
sometimes  termed  its  police  power,  to  prescribe  regulations 
to  promote  the  health,  peace,  morals,  education,  and  good 
order  of  the  people,  and  to  legislate  so  as  to  increase  the  in- 
dustries of  the  state,  develop  its  resources,  and  add  to  its 
wealth  and  prosperity.  From  the  very  necessities  of  socie- 
ty, legislation  of  a  special  character,  having  these  objects  in 
view,  must  often  be  had  in  certain  districts,  such  as  for 
draining  marshes  and  irrigating  arid  plains.  Special  bur- 


376  MANUAL  OF  COMPENSATION  LAW 

dens  are  often  necessary  for  general  benefits, — for  supply- 
ing water,  preventing  fires,  lighting  districts,  cleaning 
streets,  opening  parks,  and  many  other  objects.  Regula- 
tions for  these  purposes  may  press  with  more  or  less  weight 
upon  one  than  upon  another,  but  they  are  designed,  not  to 
impose  unequal  or  unnecessary  restrictions  upon  anyone, 
but  to  promote,  with  as  little  individual  inconvenience  as 
possible,  the  general  good.  Though,  in  many  respects,  nec- 
essarily special  in  their  character,  they  do  not  furnish  just 
ground  of  complaint  if  they  operate  alike  upon  all  persons 
and  property  under  the  same  circumstances  and  conditions. 
Class  legislation,  discriminating  against  some  and  favoring 
others,  is  prohibited,  but  legislation  which,  in  carrying  out 
a  public  purpose,  is  limited  in  its  application,  if  within  the 
sphere  of  its  operation  it  affects  alike  all  persons  similarly 
situated,  is  not  within  the  Amendment."  It  seems  to  us 
that  the  considerations  to  which  we 'have  adverted  in  New 
York  C.  R.  Co.  v.  White,  supra,  as  showing  that  the  Work- 
men's Compensation  Law  of  New  York  is  not  to  be  deemed 
arbitrary  and  unreasonable  from  the  standpoint  of  natural 
justice,  are  sufficient  to  support  the  state  of  Washington  in 
concluding  that  the  matter  of  compensation  for  accidental 
injuries  with  resulting  loss  of  life  or  earning  capacity  of 
men  employed  in  hazardous  occupations  is  of  sufficient 
public  moment  to  justify  making  the  entire  matter  of  com- 
pensation a  public  concern,  to  be  administered  through  state 
agencies.  Certainly  the  operation  of  industrial  establish- 
ments that,  in  the  ordinary  course  of  things,  frequently 
and  inevitably  produce  disabling  or  mortal  injuries  to  the 
human  beings  employed,  is  not  a  matter  of  wholly  private 
concern.  It  hardly  would  be  questioned  that  the  state 
might  expend  public  moneys  to  provide  hospital  treatment, 
artificial  limbs,  or  other  like  aid  to  persons  injured  in  in- 
dustry, and  homes  or  support  for  the  widows  and  orphans 
of  those  killed.  Does  direct  compensation  stand  on  a  less 
secure  ground?  A  familiar  exercise  of  state  power  is  the 
grant  of  pensions  to  disabled  soldiers  and  to  the  widows  and 


GENERAL  TOPICS  377 

dependents  of  those  killed  in  war.  Such  legislation  usually 
is  justified  as  fulfilling  a  moral  obligation,  or  as  tending 
to  encourage  the  performance  of  the  public  duty  of  defense. 
But  is  the  state  powerless  to  compensate,  with  pensions  or 
otherwise,  those  who  are  disabled,  or  t  the  dependents  of 
those  whose  lives  are  lost,  in  the  industrial  occupations 
that  are  so  necessary  to  develop  the  resources  and  add  to 
the  wealth  and  prosperity  of  the  state?  A  machine  as  well 
as  a  bullet  may  produce  a  wound,  and  the  disabling  effect 
may  be  the  same.  In  a  recent  case,  the  supreme  court  of 
Washington  said:  "Under  our  statutes  the  workman  is  the 
soldier  of  organized  industry,  accepting  a  kind  of  pension 
in  exchange  for  absolute  insurance  on  his  master's  prem- 
ises." Stertz  v.  Industrial  Ins.  Commission,  91  Wash.  588, 
158,  Pac.  256,  263.  It  is  said  that  the  compensation  or 
pension  under  this  law  is  not  confined  to  those  who  are  left 
without  means  of  support.  This  is  true.  But  is  the  state 
powerless  to  succor  the  wounded  except  they  be  reduced 
to  the  last  extremity?  Is  it  debarred  from  compensating 
an  injured  man  until  his  own  resources  are  first  exhausted  ? 
This  would  be  to  discriminate  against  the  thrifty  and  in 
favor  of  the  improvident.  The  power  and  discretion  of 
the  state  are  not  thus  circumscribed  by  the  14th  Amend- 
ment. 

Secondly,  is  the  tax  or  imposition  so  clearly  excessive 
as  to  be  a  deprivation  of  liberty  or  property  without  due 
process  of  law?  If  not  warranted  by  any  just  occasion, 
the  least  imposition  is  oppressive.  But  that  point  is  cov- 
ered by  what  has  been  said.  Taking  the  law,  therefore,  to 
be  justified  by  the  public  nature  of  the  object,  whether  as  a 
tax  or  as  a  regulation,  the  question  whether  the  charges 
are  excessive  remains.  Upon  this  point  no  particular  con- 
tention is  made  that  the  compensation  allowed  is  unduly 
large;  and  it  is  evident  that,  unless  it  be  so,  the  corre- 
sponding burden  upon  the  industry  can  not  be  regarded  as 
excessive  if  the  state  is  at  liberty  to  impose  the  entire  bur- 
den upon  the  industry.  With  respect  to  the  scale  of  com- 


378  MANUAL  OF  COMPENSATION  LAW 

pensation,  we  repeat  what  we  have  said  in  New  York  C.  R. 
Co.  v.  White,  that,  in  sustaining  the  law,  we  do  not  intend 
to  say  that  any  scale  of  compensation,  however  insignifi- 
cant, on  the  one  hand,  or  onerous,  on  the  other,  would  be 
supportable,  and  that  any  question  of  that  kind  may  be  met 
when  it  arises. 

Upon  the  third  question, — the  distribution  of  the  bur- 
den,— there  is  no  criticism  upon  the  act  in  its  details.  As 
we  have  seen,  its  4th  section  prescribes  the  schedule  of 
contribution,  dividing  the  various  occupations  into  groups, 
and  imposing  various  percentages  evidently  intended  to  be 
proportioned  to  the  hazard  of  the  occupations  in  the  re- 
spective groups.  Certainly  the  application  of  a  proper  per- 
centage to  the  pay  roll  of  the  industry  can  not  be  deemed 
an  arbitrary  adjustment,  in  view  of  the  legislative  decla- 
ration that  it  is  "deemed  the  most  accurate  method  of  equi- 
table distribution  of  burden  in  proportion  to  relative  haz- 
ard." It  is  a  matter  of  common  knowledge  that,  in  the 
practice  of  insurers,  the  pay  roll  frequently  is  adopted  as 
the  basis  for  computing  the  premium.  The  percentages 
seem  to  be  high;  but  when  these  are  taken  in  connection 
with  the  provisions  requiring  accounts  to  be  kept  with 
each  industry  in  accordance  with  the  classification,  and 
declaring  that  no  class  shall  be  liable  for  the  depletion  of 
the  accident  fund  from  accidents  happening  in  any  other 
class,  and  that  any  class  having  sufficient  funds  to  its 
credit  at  the  end  of  the  first  three  months  or  any  month 
thereafter  is  not  to  be  called  upon,  it  is  plain  that,  after 
the  initial  payment,  which  may  be  regarded  as  a  temporary 
reserve,  the  assessments  will  be  limited  to  the  amounts 
necessary  to  meet  actual  losses.  As  further  rebutting  the 
suggestion  that  the  imposition  is  exorbitant  or  arbitrary, 
we  should  accept  the  declaration  of  intent  that  the  fund 
shall  ultimately  become  neither  more  nor  less  than  self- 
supporting,  and  that  the  rates  are  subject  to  future  ad- 
justment by  the  legislature  and  the  classifications  to  re- 
arrangement according  to  experience,  as  plain  evidence  of 


GENERAL  TOPICS  379 

an  intelligent  effort  to  limit  the  burden  to  the  requirements 
of  each  industry. 

We  may  conveniently  answer  at  this  point  the  objection 
that  the  act  goes  too  far  in  classifying  as  hazardous  large 
numbers  of  occupations  that  are  not  in  their  nature  hazard- 
ous. It  might  be  sufficient  to  say  that  this  is  no  concern 
of  plaintiff  in  error,  since  it  is  not  contended  that  its  busi- 
nesses of  logging  timber,  operating  a  logging  railroad,  and 
operating  a  sawmill  with  power-driven  machinery,  or  either 
of  them,  are  nonhazardous.  Plymouth  Coal  Co.  v.  Penn- 
sylvania, 232  U.  S.  531,  544,  58  L.  ed.  713,  719,  34  Sup.  Ct. 
Rep.  359.  But  further,  the  question  whether  any  of  the 
industries  enumerated  in  §  4  is  nonhazardous  will  be  proved 
by  experience,  and  the  provisions  of  the  act  themselves 
give  sufficient  assurance  that  if  in  any  industry  there  be  no 
accident,  there  will  be  no  assessment,  unless  for  expenses 
of  administration.  It  is  true  that,  while  the  section  as 
originally  enacted  provided  for  advancing  the  classification 
of  risks  and  premium  rates  in  a  particular  establishment 
shown  by  experience  to  be  unduly  dangerous  because  of 
poor  or  careless  management,  there  was  no  corresponding 
provision  for  reducing  a  particular  industry  shown  by  ex- 
perience to  be  included  in  a  class  which  imposed  upon  it  too 
high  a  rate.  This  was  remedied  by  the  amendment  of  1915, 
quoted  in  the  margin,  above,  which,  however,  can  not  af- 
fect the  decision  of  the  present  case.  But  in  the  absence  of 
any  particular  showing  of  erroneous  classification, — and 
there  is  none, — the  evident  purpose  of  the  original  act  to 
classify  the  various  occupations  according  to  the  respec- 
tive hazard  of  each  is  sufficient  answer  to  any  contention 
of  improper  distribution  of  the  burden  amongst  the  indus- 
tries themselves. 

There  remains,  therefore,  only  the  contention  that  it  is 
inconsistent  with  the  due  process  and  equal  protection 
clauses,  of  the  14th  Amendment  to  impose  the  entire  cost 
of  accident  loss  upon  the  industries  in  which  the  losses 
arise.  But  if,  as  the  legislature  of  Washington  has  de- 


380  MANUAL  OF  COMPENSATION  LAW 

clared  in  the  1st  section  of  the  act,  injuries  in  such  employ- 
ments have  become  frequent  and  inevitable,  and  if,  as  we 
have  held  in  New  York  C.  R.  Co.  v.  White,  the  state  is  at 
liberty,  notwithstanding  th^!4th  Amendment,  to  disregard 
questions  of  fault  in  arranging  a  system  of  compensation 
for  such  injuries,  we  are  unable  to  discern  any  ground  in 
natural  justice  or  fundamental  right  that  prevents  the  state 
from  imposing  the  entire  burden  upon  the  industries  that 
occasion  the  losses.  The  act  in  effect  puts  these  hazard- 
ous occupations  in  the  category  of  dangerous  agencies,  and 
requires  that  the  losses  shall  be  reckoned  as  a  part  of  the 
cost  of  the  industry,  just  like  the  pay  roll,  the  repair  ac- 
count, or  any  other  item  of  cost.  The  plan  of  assessment 
insurance  is  closely  followed,  and  none  more  just  has  been 
suggested  as  a  means  of  distributing  the  risk  and  burden 
of  losses  that  inevitably  must  occur,  in  spite  of  any  care 
that  may  be  taken  to  prevent  them. 

We  are  clearly  of  the  opinion  that  a  state,  in  the  exer- 
cise of  its  power  to  pass  such  legislation  as  reasonably  is 
deemed  to  be  necessary  to  promote  the  health,  safety,  and 
general  welfare  of  its  people,  may  regulate  the  carrying 
on  of  industrial  occupations  that  frequently  and  inevitably 
produce  personal  injuries  and  disability,  with  consequent 
loss  of  earning  power,  among  the  men  and  women  em- 
ployed, and,  occasionally,  loss  of  life  of  those  who  have 
wives  and  children  or  other  relations  dependent  upon  them 
for  support,  and  may  require  that  these  human  losses  shall 
be  charged  against  the  industry,  either  directly,  as  is  done 
in  the  case  of  the  act  sustained  in  New  York  C.  R.  Co.  v. 
White,  243  U.  S.— ,  ante,  247,  37  Sup.  Ct.  Rep.  247,  or  by 
publicly  administering  the  compensation  and  distributing 
the  cost  among  the  industries  affected  by  means  of  a  rea- 
sonable system  of  occupation  taxes.  The  act  can  not  be 
deemed  oppressive  to  any  class  of  occupation,  provided  the 
scale  of  compensation  is  reasonable,  unless  the  loss,  of  hu- 
man life  and  limb  is  found  in  experience  to  be  so  great  that, 
if  charged  to  the  industry,  it  leaves  no  sufficient  margin  for 


GENERAL  TOPICS  381 

reasonable  profits.  But  certainly,  if  any  industry  involves 
so  great  a  human  wastage  as  to  leave  no  fair  profit  beyond 
it,  the  state  is  at  liberty,  in  the  interest  of  the  safety  and 
welfare  of  its  people,  to  prohibit  such  an  industry  alto- 
gether. 

To  the  criticism  that  carefully  managed  plants  are  in  ef- 
fect required  to  contribute  to  make  good  the  losses  arising 
through  the  negligence  of  their  competitors,  it  is  sufficient 
to  say  that  the  act  recognizes  that  no  management,  how- 
ever careful,  can  afford  immunity  from  personal  injuries  to 
employees  in  the  hazardous  occupations,  and  prescribes 
that  negligence  is  not  to  be  determinative  of  the  question 
of  the  responsibility  of  the  employer  or  the  industry.  Taking 
the  fact  that  accidental  injuries  are  inevitable,  in  connection 
with  the  impossibility  of  foreseeing  when,  or  in  what  par- 
ticular plant  or  industry,  they  will  occur,  we  deem  that  the 
state  acted  within  its  power  in  declaring  that  no  employer 
should  conduct  such  an  industry  without  making  stated  and 
fairly  apportioned  contributions  adequate  to  maintain  a 
public  fund  for  indemnifying  injured  employees  and  the 
dependents  of  those  killed,  irrespective  of  the  particular 
plant  in  which  the  accident  might  happen  to  occur.  In 
short,  it  can  not  be  deemed  arbitrary  or  unreasonable  for 
the  state,  instead  of  imposing  upon  the  particular  employer 
entire  responsibility  for  losses  occurring  in  his  own  plant 
or  work,  to  impose  the  burden  upon  the  industry  through 
a  system  of  occupation  taxes  limited  to  the  actual  losses 
occurring  in  the  respective  classes  of  occupation. 

The  idea  of  special  excise  taxes  for  regulation  and  reve- 
nue, proportioned  to  the  special  injury  attributable  to  the 
activities  taxed,  is  not  novel.  In  Noble  State  Bank  v.  Has- 
kell,  219  U.  S.  104,  55  L.  ed.  112,  32  L.  R.  A.  (N.  S.)  1062, 
31  Sup.  Ct.  Rep.  186,  Ann.  Cas.  1912A  487,  this  court  sus- 
tained an  Oklahoma  statute  which  levied  upon  every  bank 
existing  under  the  laws  of  the  state  an  assessment  of  a 
percentage  of  the  bank's  average  deposits,  for  the  purpose 
of  creating  a  guaranty  fund  to  make  good  the  losses  of  de- 


382  MANUAL  OF  COMPENSATION  LAW 

positors  in  insolvent  banks.  There,  as  here,  the  collection 
and  distribution  of  the  fund  were  made  a  matter  of  public 
administration,  and  the  fund  was  created  not  by  general 
taxation,  but  by  a  special  imposition  in  the  nature  of  an 
occupation  tax  upon  all  banks  existing  under  the  laws  of 
the  state.  In  Hendrick  v.  Maryland,  235  U.  S.  610,  622,  59 
L.  ed.  385,  390,  35  Sup.  Ct.  Rep.  140,  and  Kane  v.  New  Jer- 
sey, 242  U.  S.  160, 169,  ante,  30,  37  Sup.  Ct.  Rep.  30,  we  sus- 
tained laws,  of  a  kind  now  familiar,  imposing  license  fees 
upon  motor  vehicles,  graduated  according  to  horse  power, 
so  as  to  secure  compensation  for  the  use  of  improved  road- 
ways from  a  class  of  users  for  whose  needs  they  are  essen- 
tial, and  whose  operations  over  them  are  peculiarly  in- 
jurious. And  see  Charlotte,  C.  &  A.  R.  Co.  v.  Gibbes,  142 
U.  S.  386,  394,  395,  35  L.  ed.  1051,  1054,  1055,  12  Sup.  Ct. 
Rep.  255,  and  cases  cited.  Many  of  the  states  have  laws 
protecting  the  sheep  industry  by  imposing  a  tax  upon  dogs 
in  order  to  create  a  fund  for  the  remuneration  of  sheep 
owners  for  losses  suffered  by  the  killing  of  their  sheep  by 
dogs.  And  the  tax  is  imposed  upon  all  dog  owners,  with- 
out regard  to  the  question  whether  their  particular  dogs  are 
responsible  for  the  loss  of  sheep.  Statutes  of  this  char- 
acter have  been  sustained  by  the  state  courts  against  at- 
tacks based  on  constitutional  grounds.  Morey  v.  Brown, 
42  N.  H.  373,  375;  Tenney  v.  Lenz,  16  Wis.  566;  Mitchell 
v.  Williams,  27  Ind.  62 ;  Van  Horn  v.  People,  46  Mich.  183, 
185,  186,  41  Am.  Rep.  159,  9  N.  W.  246 ;  Longyear  v.  Buck, 
83  Mich.  236,  240,  10  L.  R.  A.  42,  47  N.  W.  234;  Cole  v. 
Hall,  103  111.  30 ;  Hoist  v.  Roe,  39  Ohio  St.  340,  344,  48  Am. 
Rep.  459;  McGTone  v.  Womack,  129  Ky.  274,  283,  et  seq., 
17  L.  R.  A.  (N.  S.)  855,  111  S.  W.  688. 

We  are  unable  to  find  that  the  act,  in  its  general  feat- 
ures, is  in  conflict  with  the  14th  Amendment.  Numerous 
objections  are  urged,  founded  upon  matter  of  detail,  but 
they  call  for  no  particular  mention,  either  because  they  are 
plainly  devoid  of  merit,  are  covered  by  what  we  have  said, 
or  -are  not  such  as  may  be  raised  by  plaintiff  in  error. 


GENERAL  TOPICS  383 

Perhaps  a  word  should  be  said  respecting  a  clause  in  § 
4  which  reads  as  follows :  "It  shall  be  unlawful  for  the  em- 
ployer to  deduct  or  obtain  (sic)  any  part  of  the  premium 
required  by  this  section  to  be  by  him  paid  from  the  wages 
or  earnings  of  his  workmen  or  any  of  them,  and  the  mak- 
ing or  attempt  to  make  any  such  deductions  shall  be  a  gross 
misdemeanor."  If  this  were  to  be  construed  so  broadly  as 
to  prohibit  employers  and  employees,  in  agreeing  upon 
wages  and  other  terms  of  employment,  from  taking  into 
consideration  the  fact  that  the  employer  was  a  contributor 
to  the  state  fund,  and  the  resulting  effect  of  the  act  upon 
the  rights  of  the  parties,  it  would  be  open  to  serious  ques- 
tion whether,  as  thus  construed,  it  did  not  interfere  to  an 
unconstitutional  extent  with  their  freedom  of  contract.  So 
far  as  we  are  aware,  the  clause  has  not  been  so  construed, 
and  on  familiar  principles  we  will  not  assume  in  advance 
that  a  construction  will  be  adopted  such  as  to  bring  the 
law  into  conflict  with  the  Federal  Constitution.  Bachtel  v. 
Wilson,  204  U.  S.  36,  40,  51  L.  ed.  357,  359,  27  Sup.  Ct.  Rep. 
243 ;  Plymouth  Coal  Co.  v.  Pennsylvania,  232  U.  S.  531,  546, 
58  L.  ed.  713,  720,  34  Sup.  Ct.  Rep.  359. 

Judgment  affirmed. 

The  Chief  Justice,  Mr.  Justice  McKenna,  Mr.  Justice 
Van  Devanter,  and  Mr.  Justice  McReynolds  dissent. 


WILLIAM  RAYMOND,  Plff.  in  Err., 

V. 

CHICAGO,  MILWAUKEE  &  ST.  PAUL  RAILWAY  CO. 
-  U.  S.  — ,  37  Sup.  Ct.  Rep.  268. 

In  error  to  the  United  States  Circuit  Court  of  Appeals 
for  the  Ninth  Circuit  to  review  a  judgment  which  affirmed 
a  judgment  of  the  District  court  for  the  Western  District  of 
Washington  in  favor  of  defendant  in  a  personal-injury  ac- 
tion. Affirmed. 


384  MANUAL  OF  COMPENSATION  LAW 

See  same  case  below,  147  C.  C.  A.  245,  233  Fed.  239. 

The  facts  are  stated  in  the  opinion. 

Messrs.  John  T.  Casey  and  Thomas  J.  Walsh  for  plaintiff 
in  error. 

Messrs.  Heman  H.  Field  and  George  W.  Korte  for  de- 
fendant in  error. 

Mr.  Chief  Justice  White  delivered  the  opinion  of  the 
court : 

Raymond,  the  plaintiff  in  error,  sued  the  railway  com- 
pany, a  foreign  corporation  doing  business  in  Washington, 
to  recover  damages  resulting  from  injuries  sustained  by 
him  while  in  its  employ.  The  petition  alleged  that  the  de- 
fendant operated  an  interstate  commerce  railroad  between 
Chicago  and  Seattle,  and  that,  for  the  purpose  of  shorten- 
ing its  main  line  and  making  more  efficient  and  expeditious 
its  freight  and  passenger  service,  was  engaged  in  cutting  a 
tunnel  through  the  mountain  between  Horrick's  Spur  and 
Rockdale,  in  Washington.  It  was  averred  that  plaintiff 
was  employed  by  the  defendant  in  the  tunnel  as  a  laborer, 
and  that,  while  he  was  at  work,  his  pick  struck  a  charge  of 
dynamite  which,  through  the  defendant's  negligence,  had 
not  been  removed,  and  that  from  the  explosion  which  fol- 
lowed he  had  sustained  serious  injuries. 

The  defendant's  answer  contained  a  general  denial  and 
alleged  that  at  the  time  and  place  of  the  accident  the  rail- 
road and  Raymond  were  not  engaged  in  interstate  com- 
merce, since  the  tunnel  was  only  partially  bored,  and  hence 
not  in  use  as  an  instrumentality  of  interstate  commerce. 
It  was  further  alleged  that  the  court  was  without  jurisdic- 
tion to  hear  the  cause  because  of  the  provisions  of  the  Wash- 
ington Workmen's  Compensation  Act  (Laws  1911,  chap. 
74) ,  with  whose  requirements  the  defendant  had  fully  com- 
plied. The  reply  of  the  plaintiff  admitted  the  facts  alleged 
in  the  answer,  but  denied  that  they  constituted  defenses  to 
the  action. 

The  trial  court  entered  a  judgment  for  the  defendant 
oh  the  pleadings,  and  this  writ  of  error  is  prosecuted  to  a 


GENERAL  TOPICS  385 

judgment  of  the  court  below,  affirming  such  action.  147 
C.  C.  A.  245,  233  Fed.  239. 

Considering  the  suit  as  based  upon  the  Federal  Em- 
ployer's Liability  Act,  it  is  certain,  under  recent  decisions 
of  this  court,  whatever  doubt  may  have  existed  in  the  minds 
of  some  at  the  time  the  judgment  below  was  rendered,  that, 
under  the  facts  as  alleged,  Raymond  and  the  railway  com- 
pany were  not  engaged  in  interstate  commerce  at  the  time 
the  injuries  were  suffered,  and  consequently  no  cause  of  ac- 
tion was  alleged  under  the  act.  Delaware,  L.  &  W.  R.  Co. 
v.  Yurkonis,  238  U.  S.  439,  59  L.  ed.  1397,  35  Sup.  Ct.  Rep. 
902 ;  Chicago,  B.  &  Q.  R.  Co.  v.  Harrington,  241  U.  S.  177, 
60  L.  ed.  941,  36  Sup.  Ct.  Rep.  517,  11  N.  C.  C.  A.  992;  Min- 
neapolis &  St.  L.  R.  Co.  v.  Nash,  242  U.  S.  — ,  ante,  239,  37 
Sup.  Ct.  Rep.  239. 

It  is  also  certain  that  if  the  petition  be  treated  as  al- 
leging a  cause  of  action  under  the  common  law,  the  court 
below  was  without  authority  to  afford  relief,  as  that  re- 
sult could  only  be  attained  under  the  local  law,  in  accord- 
ance with  the  provisions  of  the  Washington  Workmen's 
Compensation  Act,  which  has  this  day  been  decided  to  be 
not  repugnant  to  the  Constitution  of  the  United  States 
(Mountain  Timber  Co.  v.  Washington,  243  U.  S.  — ,  ante, 
260,  37  Sup.  Ct.  Rep.  260).  And  this  result  is  controlling 
even  although  it  be  conceded  that  the  railroad  company 
was,  in  a  general  sense,  engaged  in  interstate  commerce, 
since  it  has  been  also  this  day  decided  that  that  fact  does 
not  prevent  the  operation  of  a  state  Workmen's  Compen- 
sation Act  (New  York  C.  R.  Co.  v.  White,  243  U.  S.  — , 
ante,  247,  37  Sup.  Ct.  Rep.  247). 

Affirmed. 


CHAPTER  XI 

FEDERAL  ACT  OF  1916— ANNOTATED 

Section 

266.  Development  of  federal  compensation  legislation. 

267.  The  act  of  1916  supercedes  all  of  the  former  federal  acts. 

SECTION  I. 

To  whom  the  act  applies. 
Section 

268.  Who  is  an  employee  of  the  United  States. 

269.  Employees  under  act  of  1908. 

270.  What  is  a  "personal  injury." 

271.  The  use  of  "personal  injury"  in  act  of  1908. 

272.  General  illustrations  of  "personal  injuries"  under  act  of  1908. 

273.  Meaning  of  "while  in  the  performance  of  his  duty." 

274.  Meaning  of  "in  the  course  of  employment"  under  act  of  1908. 

275.  Willful  misconduct  of  employee  as  proximate  cause  of  injury. 

276.  "Willful  misconduct"  under  the  act  of  1908. 

277.  Employee's  intention  to  bring  about  the  injury. 

278.  Intoxication  as  proximate  cause  of  injury  or  death. 

SECTION  II. 
Waiting  period. 

Section. 

279.  Waiting  period  under  act  of  1908. 

280.  The  day  when  the  injury  occurred  must  be  counted  as  the 

first  day  of  disability. 

281.  The  days  of  disability  need  not  be  consecutive  days. 

SECTION  III. 
Amount  of  compensation  for  total  disability. 

SECTION  IV. 
Amount  of  compensation  for  partial  disability. 

SECTION  V. 
No  compensation  where  suitable  work  is  refused. 

SECTION  VI. 
Maximum  and  minimum  compensation. 


FEDERAL  ACT  OF  1916  387 

SECTION  VII. 
No  salary  or  pay  during  compensation  period. 

SECTION  VIII. 

Annual  or  sick  leaves  added  to  period  of  compen- 
sation. 

SECTION  IX. 
Medical  attention  immediately  after  injury. 

SECTION  X. 

To  whom  compensation  is  payable  in  case  of  death. 
Section. 

282.  Who  is  the  widow  of  an  employee. 

283.  "Child  or  children"  includes  "illegitimate  children." 

284.  Adopted  child. 

285.  To  whom  compensation  of  children  with  surviving  parent  is 

paid. 

286.  A  foster-parent  by  legal  adoption  may  be  a  dependent  parent. 

287.  Dependency  a  question  of  fact.     Parents. 

SECTION  XL 
Burial  expenses. 

SECTION  XII. 
How  monthly  pay  is  computed. 

SECTION  XIII. 
How  monthly  wage  earning  capacity  is  computed. 

SECTION  XIV. 
Lump  sum  settlements. 

SECTIONS  XV,  XVI,  XVII.'  • 
Written  notices  of  injury — when  and  how  to  be  given. 

SECTIONS  XVIII,  XIX,  XX. 
Claims  for  compensation,  when  and  how  made. 

SECTIONS  XXI,  XXII,  XXIII. 

Medical  examinations  and  fees. 

SECTION  XXIV. 
Immediate  superior  to  report  injuries. 

SECTION  XXV. 
Assignments  void — compensation  exempt. 


388  MANUAL  OF  COMPENSATION  LAW 

SECTIONS  XXVI,  XXVII. 
Injuries  caused  by  third  persons — procedure. 

SECTIONS  XXVIII— XXXIII. 

United   States   employee's   compensation   commission 
organization,  powers. 

SECTION  XXXIV. 
Appropriation. 

SECTION  XXXV. 
Employee's  compensation  fund. 

SECTION  XXXVI. 
Commission  to  award  or  refuse  compensation. 

SECTION  XXXVII. 
Commission  may  review  previous  order  or  award. 

SECTION  XXXVIII. 

Payments  under  mistake  of  law  or  fact  may  be  re- 
covered. 

SECTION  XXXIX. 
Penalty  for  false  affidavit  or  claim. 

SECTION  XL. 
Definitions. 

SECTION  XLI. 

Repealing     clause — provisos — Panama      railroad — re- 
leases. 

SECTION  XLII. 
Employees  of  Panama  Canal  and  Panama  Railroad  Co. 

§  266.  Development  of  Federal  Compensation  Legislation. 

The  following  facts  regarding  the  development  of  Fed- 
eral accident  compensation  legislation  are  taken  from  the 
reports  of  the  U.  S.  Bureau  of  Labor  Statistics : 

Life-Saving  Service. 

The  act  of  May  4,  1882  (22  U.  S.  Stat.  L.,  p.  57),  intro- 
duced a  system  of  compensation  not  only  for  accidental  in- 
juries but  also  for  disease  contracted  in  the  line  of  duty 


FEDERAL  ACT  OF  1916  389 

lor  certain  employees  of  the  Life-Saving  Service.    Sections 
7  and  8  of  this  act  read  as  follows : 

"§  7.  If  any  keeper  or  member  of  a  crew  of  a  life- 
saving  or  lifeboat  station  shall  be  so  disabled  by  reason  of 
any  wound  or  injury  received  or  disease  contracted  in  the 
Life-Saving  Service  in  the  line  of  duty  as  to  unfit  him  for 
the  performance  of  duty,  such  disability  to  be  determined 
in  such  manner  as  shall  be  prescribed  in  the  regulations  of 
the  service,  he  shall  be  continued  upon  the  rolls  of  the  serv- 
ice and  entitled  to  receive  his  full  pay  during  the  contin- 
uance of  such  disability,  not  to  exceed  the  period  of  one 
year,  unless  the  general  superintendent  shall  recommend, 
upon  a  statement  of  facts,  the  extension  of  the  period 
through  a  portion  or  the  whole  of  another  year,  and  said 
recommendation  receive  the  approval  of  the  Secretary  of 
the  Treasury  as  just  and  reasonable;  but  in  no  case  shall 
said  disabled  keeper  of  a  crew  be  continued  upon  the  rolls 
or  receive  pay  for  a  longer  period  than  two  years. 

§  8  (as  amended  by  act  of  March  twenty-sixth,  nineteen 
hundred  and  eight).  If  any  keeper  or  member  of  a  crew 
of  a  life-saving  or  lifeboat  station  shall  hereafter  die  by 
reason  of  perilous  service  or  any  wound  or  injury  received 
or  disease  contracted  in  the  Life-Saving  Service  in  the  line 
of  duty,  leaving  a  widow,  or  a  child  or  children  under  six- 
teen years  of  age,  or  a  dependent  mother,  such  widow  and 
child  or  children  and  dependent  mother  shall  be  entitled  to 
receive,  in  equal  portions,  during  a  period  of  two  years, 
under  such  regulations  as  the  Secretary  of  the  Treasury 
may  prescribe,  the  same  amount,  payable  quarterly  as  far 
as  practicable,  that  the  husband  or  father  or  son  would 
be  entitled  to  receive  as  pay  if  he  were  alive  and  continued 
in  the  service:  Provided,  That  if  the  widow  shall  remarry 
at  any"  time  during  the  said  two  years,  her  portion  of  said 
amount  shall  cease  to  be  paid  to  her  from  the  date  of  her 
remarriage,  but  shall  be  added  to  the  amount  to  be  paid  to 
the  remaining  beneficiaries  under  the  provisions  of  this 
section,  if  there  be  any ;  and  if  anv  child  shall  arrive  at  the 


390  MANUAL  OF  COMPENSATION  LAW. 

age  of  sixteen  years  during  the  said  two  years,  the  pay- 
ment of  the  portion  of  such  child  shall  cease  to  be  paid  to 
such  child  from  the  date  on  which  such  age  shall  be  at- 
tained, but  shall  be  added  to  the  amount  to  be  paid  to  the 
remaining  beneficiaries,  if  there  be  any." 

The  system  of  compensation  provided  for  in  this  law 
grants  full  pay  in  case  of  disability,  for  a  term  not  exceed- 
ing two  years,  and  compensation  equal  to  two  years'  pay 
to  the  widow  and  children  in  case  the  injury  or  disease 
terminates  fatally.  All  cases  of  injuries  or  disease  con- 
tracted in  line  of  duty  are  compensated.  No  provision  is 
made  for  raising  any  question  of  negligence  to  which  the 
injury  may  be  due. 

Railway  Mail  Service. 

A  compensation  system,  in  general  similar  to  the  above, 
exists  in  the  Post  Office  Department  for  the  benefit  of 
railway  postal  clerks.  The  Post  Office  Department  ap- 
propriation act  for  1901,  approved  on  June  2,  1900  (31  U. 
S.  Stat.  L.,  p.  259) ,  contained  for  the  first  time  the  follow- 
ing item: 

"For  acting  clerks  in  place  of  clerks  injured  while  on 
duty,.  $25,000." 

This  permitted  the  continuance  of  salaries  to  injured 
clerks  during  the  term  of  their  disability,  the  maximum 
period  for  such  payments  being  in  practice  restricted  to  one 
year,  virtually  establishing  a  system  of  compensation  for 
nonfatal  injuries.  In  the  next  (second)  session  of  the  Fif- 
ty-sixth Congress  the  appropriation  for  the  same  purpose 
was  increased  to  $35,000. 

The  Post  Office  Department  appropriation  act  for  1903, 
passed  in  the  first  session  of  the  Fifty-seventh  Congress, 
extended  the  system  to  include  a  lump-sum  benefit  of -$1,000 
to  the  survivors  of  railway  mail  clerks  fatally  injured 
while  on  duty,  by  the  following  language : 

"For  acting  clerks,  in  place  of  clerks  injured  while  on 
duty,  and  to  enable  the  Postmaster  General  to  pay  the  sum 


FEDERAL  ACT  OF   1916  391 

of  $1,000,  which  shall  be  exempt  from  the  payment  of 
debts  of  the  deceased,  to  the  legal  representatives  of  any 
railway  postal  clerk  or  substitute  railway  postal  clerk  who 
shall  be  killed  while  on  duty  or  who,  being  injured  while 
on  duty,  shall  die  within  one  year  thereafter  as  the  result 
of  such  injury,  $45,000." 

The  amount  appropriated  was  found  insufficient,  and 
a  deficiency  appropriation  of  $40,000  was  made  during  the 
second  session.  The  amount  appropriated  for  the  fiscal 
year  1904  was  $75,000,  following  which  was  another  de- 
ficiency appropriation  of  $20,000  made  during  the  session 
of  1903-4,  and  the  sum  of  $110,000  was  appropriated  for 
the  year  ending  June  30,  1905.  Since  that  date  the  ap- 
propriation has  been  made  at  a  uniform  rate  of  $100,000, 
until  the  appropriation  for  the  year  ending  June  30,  1912, 
when  $120,000  was  set  aside  for  the  two  purposes  of  em- 
ploying acting  clerks  and  of  paying  compensation  for  acci- 
dents. The  appropriation  act  for  the  year  ending  June  30, 
1913,  set  aside  $130,000  for  these  purposes  and  provides 
that  when  disability  continues  for  a  part  or  all  of  a  second 
year  after  injury  50  per  cent  of  the  injured  clerk's  salary 
shall  be  paid  him  during  such  continuance.  Sea  post  clerks 
are  by  the  same  act  granted  the  same  benefits  as  are  al- 
lowed railway  postal  clerks.  The  appropriation  act  for  the 
fiscal  year  1911,  approved  May  12,  1910,  increased  the 
amount  payable  in  case  of  fatal  accidents  to  $2,000. 

The  present  system,  therefore,  provides  for  disability 
compensation  equal  to  full  pay  for  the  period  of  disability 
but  not  to  exceed  one  year,  for  half -pay  for  a  second  year 
if  disability  continues,  and  in  case  of  the  injury  resulting 
fatally  a  lump-sum  payment  of  $2,000  to  the  legal  repre- 
sentatives of  the  deceased. 

Under  the  existing  legislation  the  following  regulations 
have  been  promulgated  by  the  Post  Office  Department: 

"§  1424.  Whenever  a  railway  postal  clerk  shall  be  dis- 
abled while  in  the  actual  discharge  of  his  duties  by  a  rail- 
road or  other  accident  beyond  his  power  to  control,  he  shall 


392  MANUAL  OF  COMPENSATION  LAW 

send  to  the  division  superintendent  a  certificate  of  his  at- 
tending physician  or  surgeon,  sworn  to  before  an  officer 
authorized  .to  administer  oaths,  who  has  an  official  seal, 
setting  forth  the  nature,  extent,  and  cause  of  his  disability, 
and  the  probable  duration  of  the  same;  and  such  further 
evidence  as  to  the  character  of  the  disability  as  may  be 
necessary  shall  be  furnished. 

(2)  The  division  superintendent  will  forward  the  cer- 
tificate, with  his  recommendation,  to  the  General  Superin- 
tendent of  the  Railway  Mail  Service,  who  will  submit  the 
matter  to  the  Postmaster  General,  who  may,  in  his  judg- 
ment, the  facts  justifying  such  action,  grant  such  disabled 
clerk  leave  of  absence  with  pay  for  periods  of  n6t  exceed- 
ing sixty  days  each,  and  not  exceeding  one  year  in  all. 

(3)  A  sworn  statement  from  the  attending  physician 
must  accompany  every  application  for  additional  leave." 

Act  of  May  30,  1908. 

The  bill  H.  R.  21844,  which  became  the  act  of  May  30, 
1908,  was  introduced  in  the  House  of  Representatives  on 
May  12,  1908,  referred  to  the  Judiciary  Committee,  and  re- 
ported back  on  May  15,  1908,  on  which  date  it  passed  the 
House  after  a  short  debate.  It  reached  the  Senate  on  May 
18  and  was  referred  to  the  Senate  Committee  on  Judiciary, 
which  reported  it  to  the  Senate  on  the  same  date  without 
any  essential  amendments.  It  was  extensively  debated  in 
the  Senate  on  May  21,  May  25,  and  May  27,  and  amended 
in  many  important  details,  though  the  general  plan  was  left 
unchanged.  The  most  important  amendment  was  that  ex- 
tending its  scope  in  a  few  directions  beyond  that  contem- 
plated in  the  original  bill.  It  was  stated  by  Mr.  Alexander 
on  the  floor  of  the  House  that  "the  purpose  of  this  bill  is 
to  compensate  Government  employees  engaged  in  hazard- 
ous occupations."  "Such  employment,"  Mr.  Alexander  pro- 
ceeded, "is  practically  confined  to  arsenals,  navy  yards, 
manufacturing  establishments  (such  as  arsenals,  clothing 
depots,  shipyards,  proving  grounds,  powder  factories,  and 
so -forth),  to  construction  of  river  and  harbor  work,  and  to 


FEDERAL  ACT  OF   1916  393 

work  upon  the  Isthmian  Canal."  The  bill,  accordingly, 
included  only  those  enumerated  branches  of  service.  In 
the  Senate,  however,  "fortification  work"  and  "hazardous 
employment  in  construction  work  in  the  reclamation  of 
arid  lands"  were  added.  The  minimum  length  of  duration 
of  disability  giving  rise  to  right  for  compensation  was  re- 
duced from  30  days  to  15;  the  clause  penalizing  for  at- 
tempt to  defraud  under  this  law  was  eliminated  as  unneces- 
sary, and  the  date  of  going  into  effect  was  changed  from 
July  1,  1908,  to  August  1,  1908,  to  allow  time  for  prepa- 
ration of  the  necessary  administrative  machinery.  The  text 
of  the  act  follows : 

§  1.  That  when,  on  or  after  August  first,  nineteen  hun- 
dred and  eight,  any  person  employed  by  the  United  States 
as  an  artisan  or  laborer  in  any  of  its  manufacturing  es- 
tablishments, arsenals,  or  navy  yards,  or  in  the  construc- 
tion of  river  and  harbor  or  fortification  work  or  in  hazard- 
ous employment  on  construction  work  in  the  reclamation 
of  arid  lands  or  the  management  and  control  of  the  same, 
or  in  hazardous  employment  under  the  Isthmian  Canal 
Commission,  is  injured  in  the  course  of  such  employment, 
such  employee  shall  be  entitled  to  receive  for  one  year  there- 
after, unless  such  employee,  in  the  opinion  of  the  Secretary 
of  Commerce  and  Labor,  be  sooner  able  to  resume  work,  the 
same  pay  as  if  he  continued  to  be  employed,  such  payment  to 
be  made  under  such  regulations  as  the  Secretary  of  Com- 
merce and  Labor  may  prescribe:  Provided,  That  no  com- 
pensation shall  be  paid  under  this  act  where  the  injury  is 
due  to  the  negligence  or  misconduct  of  the  employee  injured, 
nor  unless  said  injury  shall  continue  for  more  than  fifteen 
days.  All  questions  of  negligence  or  misconduct  shall  be  de- 
termined by  the  Secretary  of  Commerce  and  Labor. 

§  2.  That  if  any  artisan  or  laborer  so  employed  shall 
die  during  the  said  year  by  reason  of  such  injury  received 
in  the  course  of  such  employment,  leaving  a  widow,  or  a 
child  or  children  under  sixteen  years  of  age,  or  a  depend- 
ent parent,  such  widow  and  child  or  children  and  dependent 


394  MANUAL  OF  COMPENSATION  LAW 

parent  shall  be  entitled  to  receive,  in  such  portions  and 
under  such  regulations  as  the  Secretary  of  Commerce  and 
Labor  may  prescribe,  the  same  amount,  for  the  remainder 
of  the  said  year,  that  said  artisan  or  laborer  would  be  en- 
titled to  receive  as  pay  if  such  employee  were  alive  and 
continued  to  be  employed:  Provided,  That  if  the  widow 
shall  die  at  any  time  during  the  said  year  her  portion  of 
said  amount  shall  be  added  to  the  amount  to  be  paid  to  the 
remaining  beneficiaries  under  the  provisions  of  this  section, 
if  there  be  any. 

§  3.  That  whenever  an  accident  occurs  to  any  employee 
embraced  within  the  terms  of  the  first  section  of  this  act, 
and  which  results  in  death  or  a  probable  incapacity  for 
work,  it  shall  be  the  duty  of  the  official  superior  of  such 
employee  to  at  once  report  such  accident  and  the  injury 
resulting  therefrom  to  the  head  of  his  bureau  or  independ- 
ent office,  and  his  report  shall  be  immediately  communi- 
cated through  regular  official  channels  to  the  Secretary 
of  Commerce  and  Labor.  Such  report  shall  state,  first, 
the  time,  cause,  and  nature  of  the  accident  and  injury  and 
the  probable  duration  of  the  injury  resulting  therefrom; 
second,  whether  the  accident  arose  out  of  or  in  the  course 
of  the  injured  person's  employment;  third,  whether  the 
accident  was  due  to  negligence  or  misconduct  on  the  part 
of  the  employee  injured;  fourth,  any  other  matters  required 
by  such  rules  and  regulations  as  the  Secretary  of  Commerce 
and  Labor  may  prescribe.  The  head  of  each  department 
or  independent  office  shall  have  power,  however,  to  charge 
a  special  official  with  the  duty  of  making  such  reports. 

§  4.  That  in  the  case  of  any  accident  which  shall  re- 
sult in  death,  the  persons  entitled  to  compensation  under 
this  act  or  their  legal  representatives  shall,  within  ninety 
days  after  such  death,  file  with  the  Secretary  of  Commerce 
and  Labor  an  affidavit  setting  forth  their  relationship  to 
the  deceased  and  the  ground  of  their  claim  for  compensa- 
tion under  the  provisions  of  this  act.  This  shall  be  ac- 
companied by  the  certificate  of  the  attending  physician  set- 


FEDERAL  ACT  OF  1916  395 

ting  forth  the  fact  and  cause  of  death,  or  the  nonproduction 
of  the  certificate  shall  be  satisfactorily  accounted  for.  In 
the  case  of  incapacity  for  work  lasting  more  than  fifteen 
days,  the  injured  party  desiring  to  take  the  benefit  of  this 
act  shall,  within  a  reasonable  period  after  the  expiration 
of  such  time,  file  with  his  official  superior,  to  be  forwarded 
through  regular  official  channels  to  the  Secretary  of  Com- 
merce and  Labor,  an  affidavit  setting  forth  the  grounds 
of  hfs  claim  for  compensation,  to  be  accompanied  by  a  cer- 
tificate of  the  attending  physician  as  to  the  cause  and  na- 
ture of  the  injury  and  probable  duration  of  the  incapacity, 
or  the  nonproduction  of  the  certificate  shall  be  satisfactori- 
ly accounted  for.  If  the  Secretary  of  Commerce  and  La- 
bor shall  find  from  the  report  and  affidavit  or.  other  evi- 
dence produced  by  the  claimant  or  his  or  her  legal  repre- 
sentatives, or  from  such  additional  investigation  as  the  Sec- 
retary of  Commerce  and  Labor  may  direct,  that  a  claim 
for  compensation  is  established  under  this  act,  the  compen- 
sation to  be  paid  shall  be  determined  as  provided  under  this 
act  and  approved  for  payment  by  the  Secretary  of  Com- 
merce and  Labor. 

§  5.  That  the  employee  shall,  whenever  and  as  often 
as  required  by  the  Secretary  of  Commerce  and  Labor,  at 
least  once  in  six  months,  submit  to  medical  examination,  to 
be  provided  and  paid  for  under  the  direction  of  the  Secre- 
tary, and  if  such  employee  refuses  to  submit  to  or  obstructs 
such  examination  his  or  her  right  to  compensation  shall  be 
lost  for  the  period  covered  by  the  continuance  of  such  re- 
fusal or  obstruction. 

§  6.  That  payments  under  this  act  are  only  to  be  made 
to  the  beneficiaries  or  their  legal  representatives  other 
than  assignees,  and  shall  not  be  subject  to  the  claims  of 
creditors. 

§  7.  That  the  United  States  shall  not  exempt  itself 
from  liability  under  this  act  by  any  contract,  agreement, 
rule,  or  regulation,  and  any  such  contract,  agreement,  rule, 
or  regulation  shall  be  pro  tanto  void. 


396  MANUAL  OF  COMPENSATION  LAW 

§  8.  That  all  acts  or  parts  of  acts  in  conflict  herewith 
or  providing  a  different  scale  of  compensation  or  otherwise 
regulating  its  payment  are  hereby  repealed. 

Amending  Acts. 

Of  the  numerous  bills  for  the  amendment  of  this  act, 
which  have  been  introduced  since  its  enactment,  four  have 
become  laws,  two  of  them  relating  to  injured  employees  on 
the  Isthmian  Canal.  The  first  was  H.  R.  22340,  Sixty- 
first  Congress,  introduced  by  Mr.  Mann  on  December  7, 
1908,  becoming  a  law  on  February  24,  1909  (35  U.  S.  Stat. 
L.,  p.  645). 

The  act  reads  as  follows: 

That  nothing  contained  in  the  act  approved,  May  thir- 
tieth, nineteen  hundred  and  eight,  entitled  "An  act  granting 
to  certain  employees  of  the  United  States  the  right  to  re- 
ceive from  it  compensation  for  injuries  sustained  in  the 
course  of  their  employment,"  shall  prevent  the  Isthmian 
Canal  Commission,  under  rules  to  be  fixed  by  the  commis- 
sion, from  granting  to  its  injured  employees,  whether  en- 
gaged in  a  hazardous  employment  or  otherwise,  leave  of 
absence  with  pay  for  time  necessarily  lost  as  a  result  of 
injuries  received  in  the  course  of  employment,  not  exceed- 
ing in  the  aggregate  thirty  days  per  annum :  Provided,  how- 
ever, That  compensation  paid  to  such  injured  employees 
under  such  regulations  shall  be  deducted  from  any  com- 
pensation which  such  employees  may  be  entitled  to  receive 
under  the  terms  of  the  said  act. 

The  following  explanation  of  this  act  was  made  by  Mr. 
Mann  in  the  House  (Jan.  9,  1909)  : 

"It  has  been  the  custom  of  the  Isthmian  Canal  Com- 
mission to  give  compensation  to  an  injured  employee 
whether  he  was  engaged  in  hazardous  employment  or  not, 
and  also  to  give  him  compensation  although  his  time  kept 
from  employment  was  less  than  15  days;  but  it  has  been 
construed  that  the  Isthmian  Canal  Commission,  being  in- 
cluded in  the  law  passed  at  the  last  session,  is  controlled  by 


FEDERAL  ACT  OF   1916  397 

. 

that  law,  and  that  under  that  law  the  former  practice  of 
the  commission  is  changed  so  that  now  they  can  not  pay 
to  an  injured  employee  any  compensation  unless  that  em- 
ployment shall  be  called  "hazardous"  employment,  nor  can 
they  pay  him  any  compensation  unless  he  is  kept  from  work 
for  at  least  15  days.  The  purpose  of  this  bill,  which  is 
asked  for  both  by  the  Isthmian  Canal  Commission  and  the 
labor  employed  on  the  canal,  is  to  give  to  the  commission 
the  power  to  pay  to  an  injured  employee  who  is  kept  from 
his  work  less  than  15  days  the  pay  for  that  time,  and  also 
to  give  the  commission  the  power  to  pay  although  the  em- 
ployee is  not  technically  engaged  in  hazardous  employ- 
ment." 

This  compensation  was  paid  to  the  employees  of  the 
Isthmian  Canal  Commission  under  regulations  adopted  on 
June  11,  1907,  and  effective  since  July  1,  1907. 
This  special  accident  leave  could  not  exceed  30  days, 
and  was  known  as  "meritorious  sick  leave,"  which  was 
over  and  above  the  ordinary  sick-leave  provisions.  But 
by  a  decision  of  September  1,  1908,  the  comptroller,  upon 
request  of  the  Isthmian  Canal  Commission  for  an  advance 
decision  as  to  the  legality  of  these  payments,  ruled:  "That 
this  enactment  (act  of  May  30,  1908)  is  exclusive,  after  it 
came  into  effect,  and  that  it  is  no  longer  in  the  power  of  the 
commission  by  regulation,  past  or  present,  to  enlarge  or 
diminish  the  provisions  of  that  act,"  and  that  the  commis- 
sion was  not  authorized  to  pay  to  an  employee  who  is  en- 
titled to  the  benefits  of  the  act  of  May  30,  1908,  any  com- 
pensation for  an  injury,  if  the  period  for  which  he  is  in- 
capacitated is  15  days  or  less;  nor  to  pay  compensation  to 
an  employee  injured  through  his  own  negligence  or  miscon- 
duct, whether  the  duration  of  the  injury  is  more  or  less  than 
15  days.  It  was  also  ruled  that  the  act  made  illegal  any 
payments  of  compensation  to  employees  not  covered  by  the 
act.  (XV  Decisions  of  the  Comptroller  of  the  Treasury,  p. 
161.) 

The  act  of  February  24,  1909,  therefore  re-established 


398  MANUAL  OF  COMPENSATION  LAW 

the  conditions  existing  under  the  regulations  of  June  11, 
1907,  legalizing  the  compensation  of  injuries  lasting  less 
than  15  days,  and  also  injuries  causing  disability  not  ex- 
ceeding 30  days  to  persons  in  nonhazardous  occupations  on 
the  Isthmian  Canal ;  it  also  gave  an  option  in  reference  to 
cases  causing  disability  over  15  days  but  not  over  30  days, 
which  may,  since  this  enactment,  be  compensated  either 
under  the  act  of  May  30,  1908,  or  that  of  February  24,  1909. 
As  a  matter  of  fact,  the  Isthmian  Canal  Commission  de- 
cided not  to  avail  itself  of  this  provision  of  the  law,  in  order 
to  prevent  confusion  from  the  complexity  of  reports,  and 
practically  all  cases  causing  disability  of  over  15  days  con- 
tinued to  be  adjudicated  by  the  Department  of  Commerce 
and  Labor  under  the  act  of  May  30,  1908,  until  March  4, 
1911.  On  this  date  a  second  amending  law  (36  U.  S.  Stat. 
L.,  p.  1453)  took  effect,  being  section  5  of  the  sundry  civil 
appropriation  bill  for  the  fiscal  year  ending  June  30,  1912. 
By  this  amendment  the  entire  administration  of  the  law, 
in  so  far  as  it  affects  employees  of  the  Isthmian  Canal 
Commission,  is  transferred  to  that  commission,  the  law 
is  extended  in  scope  so  as  to  include  all  employees  of  the 
commission  without  reference  to  the  hazardous  or  non- 
hazardous  character  of  their  employment;  and  one  year 
is  allowed  for  the  filing  of  claim;  in  case  of  death,  instead 
of  90  days,  as  in  the  original  act.  The  section  in  question 
is  as  follows: 

"§  5.  That  hereafter  the  act  granting  to  certain  em- 
ployees of  the  United  States  the  right  to  receive  from  it 
compensation  for  injuries  sustained  in  the  course  of  their 
employment  shall  apply  to  all  employees  under  the  Isthmian 
Canal  Commission  when  injured  in  the  course  of  their  em- 
ployment, and  claims  for  compensation  on  account  of  in- 
jury or  death  resulting  from  an  accident  occurring  here- 
after shall  be  settled  by  the  chairman  of  the  Isthmian  Ca- 
nal Commission,  who  shall,  as  to  such  claims  and  under 
such  regulations  as  he  may  prescribe,  perform  all  the  du- 
ties now  devolving  upon  the  Secretary  of  Commerce  and 


FEDERAL  ACT  OF   1916  399 

Labor:  Provided,  That  when  an  injury  results  in  death 
claim  for  compensation  on  account  thereof  shall  be  filed 
within  one  year  after  such  death." 

The  third  amending  act  was  approved,  March  11,  1912 
(37  Stat.,  7),  and  has  the  effect  of  including  employees  en- 
gaged in  hazardous  work  under  the  Bureau  of  Mines  or 
the  Forestry  Service  of  the  United  States  under. the  pro- 
visions of  the  original  act.  This  amendment  is  as  follows : 

"That  the  provisions  of  the  act  approved,  May  thirtieth, 
nineteen  hundred  and  eight,  entitled  'An  act  granting  to 
certain  employees  of  the  United  States  the  right  to  receive 
from  it  compensation  for  injuries  sustained  in  the  course 
of  their  employment,'  shall,  in  addition  to  the  classes  of 
persons  therein  designated,  be  held  to  apply  to  any  artisan, 
laborer,  or  other  employee  engaged  in  any  hazardous  work 
under  the  Bureau  of  Mines  or  the  Forestry  Service  of  the 
United  States:  Provided,  That  this  act  shall  not  be  held  to 
embrace  any  case  arising  prior  to  its  passage." 

The  fourth  amendment  is  found  in  the  act  of  July  27, 
1912,  authorizing  additional  aids  in  the  Lighthouse  Serv- 
ice, etc.  (37  Stat.,  238,  239),  and  is  as  follows: 

"And  hereafter  the  benefits  of  the  act  of  May  thirtieth, 
nineteen  hundred  and  eight  (Thirty-fifth  Statutes,  page 
five  hundred  and  fifty-six),  entitled  'An  act  granting  to 
certain  employees  of  the  United  States  the  right  to  receive 
from  it  compensation  for  injuries  sustained  in  the  course 
of  their  employment,'  shall  be  extended  to  persons  employed 
by  the  United  States  in  any  hazardous  employment  in  the 
Lighthouse  Service.  .  .  ." 

§  267.  The  Act  of  1916  Supersedes  All  of  the  Former  Feder- 
al Acts. 

The  federal  workmen's  compensation  act  of  1916  was 
intended  to  replace  the  rights  and  remedies  supplied  by  all 
former  acts.  The  new  act  is  reproduced  in  the  following 
pages  section  by  section  and  is  annotated  with  the  decis- 
ions of  the  Solicitor  for  the  Department  of  Labor  under 
the  act  of  1908  wherever  deemed  appliable  to  this  act.  Cross 


400  MANUAL  OF  COMPENSATION  LAW 

references  are  also  given  to  treatment  of  similar  questions 
in  other  portions  of  this  book. 

SECTION  I. 
To  Whom  the  Act  Applies. 

An  Act  to  provide  compensation  for  employees  of  the  United  States  suffering 
injuries  whila  in  the  performance  of  their  duties,  and  for  other  purposes. 

§  1.  Be  it  enacted  by  the  Senate  and  House  of 
Representatives  of  the  United  States  of  America  in 
Congress  assembled, 

That  the  United  States  shall  pay  compensation 
as  hereinafter  specified  for  the  disability  or  death 
of  an  employee  resulting  from  a  personal  injury 
sustained  while  in  the  performance  of  his  duty, 
but  no  compensation  shall  be  paid  if  the  injury  or 
death  is  caused  by  the  willful  misconduct  of  the 
employee  or  by  the  employee's  intention  to  bring 
about  the  injury  or  death  of  himself  or  of  another, 
or  if  intoxication  of  the  injured  employee  is  the 
proximate  cause  of  the  injury  or  death. 

§  268.  Who  Is  an  Employee  of  the  United  States? 

The  word  "employee"  alone  is  used  in  the  first  sec- 
tion of  the  act,  but  in  section  40,  it  is  defined  as  follows: 
"The  term  'employee'  includes  all  civil  employees  of  the 
United  States."  It  is  the  apparent  intention  of  the  statute 
to  exclude  the  class  of  men  in  the  service  of  the  United 
States,  who  are  "officers  of  the  government"  as  distin- 
guished from  employees.  It  has  been  estimated  that  the  act 
of  1916  will  apply  to  approximately  380,000  persons  while 
the  former  act  affected  only  95,000,  on  account  of  its  limited 
coverage.  On  the  question  of  whether  or  not  a  person 
is  employed  by  the  United  States  the  decisions  of  the  So- 
licitor of  the  Department  of  Labor,  under  the  Act  of  May 
30,  1908,  as  amended,  are  in  point.  To  illustrate  who  were 
considered  employees  of  the  United  States,  some  of  these 
opinions  are  cited  in  the  following  sections: 

§  269.  Employees  Under  Act  of  1908. 

1    A  plate  printer  in  the  Bureau  of  Engraving  and  Print- 


FEDERAL  ACT  OF   1916  401 

ing,  paid  by  the  piece,  is  an  employee  of  the  United  States, 
and  not  a  mere  contractor.  In  re  claim  of  A.  E.  Clark,  Dec. 
17,  1908;  No.  92,  Op.  Sol.  [1915]  49,  construing  the  act  of 
1908  the  Solicitor  of  the  Labor  Department  said:  "The 
act  applies  to  'any  person  employed  by  the  United  States 
as  an  artisan  or  laborer'  in  certain  branches  of  the  Gov- 
ernment service.  A  plate  printer  is  a  subordinate  of  one 
of  the  officers  of  the  United  States,  and  he  received  his  pay 
direct  from  the  United  States.  The  fact  that  his  pay  is 
measured  by  the  piece  instead  of  by  the  day  or  month  can 
not,  in  my  opinion,  affect  his  status  as  a  'person  employed 
by  the  United  States.'  I  am  satisfied,  therefore,  that  a 
plate  printer  who  renders  service  to  the  United  States  and 
who  is  paid  by  the  United  States,  whether  by  the  piece  or 
otherwise,  is  a  'person  employed  by  the  United  States'  with- 
in the  meaning  of  the  act.  That  he  is  an  artisan  or  laborer 
is  not  questioned." 

A  workman  employed  by  a  Government  contractor  is 
not  employed  by  the  Government.  In  re  claim  of  R.  Lips- 
comb,  Jan.  14,  1910;  No.  2418,  Op.  Sol.  [1915]  50,  the  So- 
licitor of  the  Labor  Department  said : 

"Lipscomb  was  in  the  employ  of  the  McCord  Co.,  which 
company  was  engaged,  under  contract  with .  the  Govern- 
ment, in  the  construction  of  Lock  and  Dam  No.  1.  This 
work  was  being  done  under  the  supervision  of  an  engineer 
of  the  Government,  and  while  so  engaged  upon  the  work 
Lipscomb  was  injured  on  December  21,  1908. 

Under  the  foregoing  state  of  facts  the  question  arises 
as  above  set  forth  and  the  answer  to  the  same  is  found  in 
section  1  of  the  act  of  May  30,  1908,  wherein  the  persons 
entitled  to  the  benefits  of  the  act  are  described  as  follows : 

'That  when,  on  or  after  August  first,  nineteen  hundred 
and  eight,  any  person  employed  by  the  United  States  as  an 
artisan  or  laborer  .  .  .' 

The  question  herein  presented  is  whether  Mr.  Lips- 
comb  was  employed  by  the  United  States  within  the  mean- 
ing of  the  act.  It  would  seem  almost  impossible  to  make 


402  MANUAL  OF  COMPENSATION  LAW 

the  act  any  clearer  than  was  done  by  the  words  as  used 
therein,  limiting  the  benefits  thereof  to  'any  person  em- 
ployed by  the  United  States.'  Such  wording  was  evident- 
ly intended  to  limit  the  application  of  the  act  to  the  classes 
mentioned  therein  in  the  immediate  employ  of  the  Gov- 
ernment, or  in  other  words  those  employees  between  whom 
and  the  Government  some  privity  existed.  .  .  . 

As  Mr.  Lipscomb  was  not  employed  by  the  United 
States,  I  am  therefore  of  the  opinion  that  he  is  not  such  a 
person  as  would  be  entitled  to  compensation  under  the  act 
of  May  30,  1908." 

The  owner  of  a  power  boat,  chartered  to  the  Govern- 
ment and  operated  by  the  owner  in  its  service,  is  an  inde- 
pendent contractor  and  not  an  employee  of  the  United 
States.  In  re  claim  of  John  Hanson,  Mar.  27,  1912;  No. 
7586,  Op.  Sol.  [1915]  51,  the  Solicitor  said: 

"Claim  for  compensation  has  been  filed  by  the  widow 
and  children  of  John  Hanson,  owner  and  engineer  of  a 
launch  which  was  hired  by  the  Engineer  Office  of  the  War 
Department  at  New  York,  N.  Y.,  under  an  agreement  be- 
tween the  officials  in  charge  of  river  and  harbor  improve- 
ment work  in  East  River  and  Mr.  Hanson.  .  .  . 

The  United  States  Supreme  Court,  citing  this  case  in 
Sturgis  v.  Boyer  (24  Howard,  123),  said:  'By  employing 
a  tug  to  transport  their  vessel  from  one  point  to  another 
the  owners  of  the  tow  do  not  necessarily  constitute  the 
master  and  crew  of  the  tug  their  agents  in  performing  the 
service.  They  neither  appoint  the  master  of  the  tug  nor  ship 
the  crew ;  nor  can  they  displace  either  the  one  or  the  other. 
Their  contract  for  the  service,  even  though  it  was  negoti- 
ated with  the  master,  is,  in  legal  contemplation,  made  with 
the  owners  of  the  vessel,  and  the  master  of  the  tug,  not- 
withstanding the  contract  was  negotiated  with  him,  con- 
tinues to  be  the  agent  of  the  owners  of  his  own  vessel,  and 
they  are  responsible  for  his  acts  in  navigation.' 

The  fact  of  ownership  of  the  launch  indicates  that  de- 
cedent was  in  business  for  himself — held  himself  out  for 


FEDERAL  ACT  OF   1916  403 

hire  to  anyone  requiring  the  services  of  a  launch.  He  was 
in  an  independent  business,  ready  and  willing  at  all  times 
to  serve  the  public  on  the  same  basis  as  any  other  public 
licensed  carrier  for  hire,  which  in  itself  is  "sufficient  to 
justify  the  conclusion  that  it  was  not  his  intention  to  part 
with  control  of  his  boat  or  his  agent,  had  such  agent  been 
placed  in  charge  and,  under  the  terms  of  this  agreement, 
been  subsisted  and  paid  by  him.  .  .  . 

After  a  careful  consideration  of  the  facts  of  the  case, 
in  the  light  of  the  authorities  referred  to,  I  am  inclined  to 
the  opinion  that  the  decedent  was  an  independent  contrac- 
tor and  not  an  employee  or  servant,  and  for  this  reason  he 
is  not  to  be  considered  as  having  been  'employed  by  the 
United  States'  as  contemplated  by  §  1  of  the  act." 

A  workman  employed  and  carried  on  the  pay  rolls  of 
the  Reclamation  Service  is  employed  by  the  United  States 
when  performing  work  being  done  by  a  contractor  for  the 
Government,  if  directed  so  to  do  by  his  superior.  In  re 
claim  of  Joseph  W.  Crawford,  May  6,  1913,  Op.  Sol. 
[1915]  56. 

A  workman  employed  in  the  Forest  Service  was  desig- 
nated, with  others,  to  perform  certain  work  which  the 
Government  was  performing  under  an  agreement  with 
county  supervisors,  the  latter  bearing  the  expense.  Held 
that  he  was  employed  by  the  United  States  and  entitled  to 
compensation  for  the  injury  sustained  while  so  employed. 
In  re  claim  of  Ben  Kenney,  Oct.  6,  1913,  Op.  Sol.  [1915]  57. 

A  contract  tie  maker,  paid  by  the  piece,  who  boards 
himself  and  hires  and  pays  his  own  help  is  an  independent 
contractor  and  not  an  employee  of  the  United  States.  In  re 
contractors  or  jobbers  at  Neopit  Indian  sawmill,  Apr.  8, 
1915,  Op.  Sol.  [1915]  58. 

§  270.  What  Is  a  "Personal  Injury"? 

The  act  of  1916  uses  the  words  "injury"  or  "personal 
injury"  consistently.  It  is  plain  that  Congress  had  in  mind 
the  divergence  of  opinion  as  to  the  kind  and  source  of  dis- 
ability embraced  by  the  words  "personal  injury"  where  the 


404  MANUAL  OF  COMPENSATION  LAW 

word  "accident"  is  also  used.  These  words  are  no  longer 
used  carelessly  by  the  framers  of  compensation  acts.  Where 
the  word  "personal  injury"  alone  is  used,  as  in  this  act,  it 
is  well  settled  that  not  only  injuries  of  a  purely  accidental 
nature  are  included,  but  also  injuries  directly  attributable 
to  the  nature  of  the  employment  engaged,  namely,  occupa- 
tional diseases.  Whenever  the  words  "accidental  injury" 
or  "injury  by  accident"  are  used,  the  coverage  of  the  act  is 
too  narrow  to  include  occupational  diseases,  but  is,  even 
then,  usually,  broad  enough  to  include  such  diseases  as  are 
the  natural  and  proximate  result  of  the  traumatic  injury 
received  by  accident. 

It  is  evident,  therefore,  that  when  Congress  used  the 
word  "personal  injury"  it  intended  the  act  of  1916  to  cover 
not  only  injuries  by  accident  received  in  the  course  of  em- 
ployment, but  also  occupational  diseases  contracted  as  a 
result  of  the  employment. 

§  271.  The  Use  of  "Personal  Injury"  in  A,ct  of  1908. 

This  is  best  set  forth  by  quoting  a  small  part  of  an  ex- 
tensive opinion  of  Mr.  Wickersham  as  attorney  general  of 
the  United  States;  In  re  claim  of  A.  E.  Clark,  27  Op.  At. 
Gen.  346,  Op.  Sol.  Dep.  Labor  [1915]  200.  The  facts  were 
stated  by  the  Attorney  General,  who  said : 

"The  claimant,  Alfred  E.  Clark,  a  person  employed  by 
the  United  States  as  a  plate  printer  in  the  Bureau  of  En- 
graving and  Printing,  was  injured  in  the  course  of  his  em- 
ployment on  September  3,  1908.  His  employment  at  the 
time  of  the  injury  consisted  in  working  a  hand  press,  which 
involved  the  five  operations  of  inking  the  plate  with  a  hand 
roller,  wiping  the  surplus  ink  off  the  plate  with  a  rag,  pol- 
ishing the  plate  with  the  hands,  placing  the  plate  on  the 
bed  of  the  press,  and  pulling  it  through  by  the  handlebars. 
This  had  been  the  claimant's  occupation  for  several  years, 
and  he  had  been  accustomed  to  perform  the  various  opera- 
tions mentioned  on  an  average  of  about  950  times  a  day. 
During  the  day  and  at  the  time  of  the  injury  the  physical 
conditions  of  his  employment  were  as  usual,  except  that 


FEDERAL  ACT  OF   1916  405 

the  ink  used  was  probably  somewhat  thicker  than  it  should 
have  been.  The  injury  sustained  by  the  claimant  consisted 
of  a  condition  of  relaxation  of  the  posterior  ligaments  (of 
right  wrist),  commonly  known  as  a  sprain,  complicated  by 
a  rupture  of  the  synovial  sac  surrounding  the  ligaments 
leading  from  the  back  part  of  the  forearm  to  the  fingers,  of 
which  the  subjective  symptoms  were  a  swelling,  due  to  the 
rupture,  and  a  weakness  of  the  flexor  and  extensor  muscles. 
The  injury  continued  (for  more  than  fifteen  days),  inas- 
much as  it  had  to  be  treated  by  placing  the  wrist  in  a  plaster 
cast  and  allowing  it  to  rest  for  several  weeks.  The  injury 
did  not,  however,  immediately  result  in  incapacity  for  work. 
The  claimant  continued  to  work  on  the  day  of  the  injury 
and  on  the  day  following,  as  well  as  during  a  part  of  the 
next  day.  He  was  then  absent  from  work  on  account  of  the 
injury  for  six  days,  when  he  returned  to  work  and  worked 
for  seven  days.  Thereafter  he  was  absent  from  work  on 
account  of  the  injury  for  several  weeks. 

The  act  referred  to  is  entitled  'An  act  granting  to  cer- 
tain employees  of  the  United  States  the  right  to  receive 
from  it  compensation  for  injuries  sustained  in  the  course 
of  their  employment.'  §  1  reads  as  follows: 

'That  when  on  or  after  August  first,  nineteen  hundred 
and  eight,  any  person  employed  by  the  United  States  as  an 
artisan  or  laborer  in  any  of  its  manufacturing  establish- 
ments, arsenals,  or  navy  yards,  or  in  the  construction  of 
river  and  harbor  or  fortification  work,  or  in  hazardous  em- 
ployment oh  construction  work  in  the  reclamation  of  arid 
lands,  or  the  management  and  control  of  the  same,  or  in 
hazardous  employment  under  the  Isthmian  Canal  Commis- 
sion, is  injured  in  the  course  of  such  employment,  such  em- 
ployee shall  be  entitled  to  receive  for  one  year  thereafter, 
unless  such  employee,  in  the  opinion  of  the  Secretary  of 
Commerce  and  Labor,  be  sooner  able  to  resume  work,  the 
same  pay  as  if  he  continued  to  be  employed,  such  payment 
to  be  made  under  such  regulations  as  the  Secretary  of  Com- 
merce and  Labor  may  prescribe:  Provided,  That  no  com- 


406  MANUAL  OF  COMPENSATION  LAW 

pensation  shall  be  paid  under  this  act  where  the  injury  is 
due  to  the  negligence  or  misconduct  of  the  employee  in- 
jured, nor  unless  said  injury  shall  continue  for  more  than" 
fifteen  days.  All  questions  of  negligence  or  misconduct  shall 
be  determined  by  the  Secretary  of  Commerce  and  Labor.' 

The  first  few  lines  of  §  3  are  as  follows : 

That  whenever  an  accident  occurs  to  any  employee  em- 
braced within  the  terms  of  the  first  section  of  this  act,  and 
which  results  in  death  or  a  probable  incapacity  for  work,  it 
shall  be  the  duty  of  the  official  superior  of  such  employee 
to  at  once  report  such  accident  and  the  injury  resulting 
therefrom  to  the  head  of  his  bureau.' 

The  first  few  lines  of  §  4  are  as  follows : 

That  in  the  case  of  an  accident  which  shall  result  in 
death,  the  persons  entitled  to  compensation  under  this  act  or 
their  legal  representatives  shall,  within  ninety  days  after 
such  death,  file  with  the  Secretary  of  Commerce  and  Labor 
an  affidavit  setting  forth  their  relationship  to  the  deceased 
and  the  ground  of  their  claim  for  compensation  under  the 
provisions  of  this  act.' 

The  question  involved  in  your  inquiry  is  whether  or  not 
the  purpose  of  the  act,  as  expressed  in  the  first  section  and 
as  indicated  by  the  title,  viz.,  to  secure  to  employees  of  the 
United  States,  of  the  class  specified,  the  right  to  receive 
compensation  for  injuries  sustained  in  the  course  of  their 
employment,  is  controlled  and  narrowed  by  the  use  in  Sec- 
tions 3  and  4  of  the  word  'accident.' 

It  will  be  observed  that  in  the  first  and  second  sections 
of  the  act,  which  confer  the  right,  the  language  employed 
refers  broadly  to  injuries  received  by  an  employee  in  the 
course  of  his  employment.  This  is  safeguarded  by  the 
proviso  in  the  first  section  that  no  compensation  shall  be 
paid  where  the  injury  is  due  to  the  negligence  or  miscon- 
duct of  the  employee  injured,  'nor  unless  the  said  injury 
shall  continue  for  more  than  fifteen  days.'  By  §  2,  if  such 
employee  shall  die  during  the  year  by  reason  of  such  injury 
received  in  the  course  of  his  employment,  leaving  a  widow 


FEDERAL  ACT  OF   1916  407 

or  relatives  of  the  designated  class,  the  amount  which  would 
have  been  paid  to  such  employee  during  the  remainder  of 
the  year  is  required  to  be  divided  among  and  paid  over  to 
such  widow  or  other  relatives  in  the  manner  provided  in 
the  act.  The  word  'accident*  is  only  employed  in  the  third 
and  fourth  sections,  the  third  section  relating  to  the  report 
of  the  occurrence  of  the  accident  and  the  character  of  such 
report,  and  the  fourth  section  referring  to  'the  case  of  any 
accident  which  shall  result  in  death,'  and  providing  for  the 
affidavit  of  claim  and  other  proofs.  Later  on  in  the  fourth 
section  occurs  this  paragraph : 

'In  the  case  of  incapacity  for  work  lasting  more  than 
fifteen  days,  the  injured  party  desiring  to  take  the  benefit 
of  this  act  shall,  within  a  reasonable  period  after  the  ex- 
piration of  such  time,  file  ...  an  affidavit  setting 
forth  the  grounds  of  his  claim  for  compensation,  to  be  ac- 
companied by  a  certificate  of  the  attending  physician  as  to 
the  cause  and  nature  of  the  injury  and  probable  duration 
of  the  incapacity.  .  .  .' 

In  other  words,  the  statute  quite  consistently  provides 
for  the  cases  of  injuries  in  the  course  of  the  employment, 
and  accidents  resulting  in  death  or  otherwise.  The  word 
'injury'  is  employed  comprehensively  to  embrace  all  the 
cases  of  incapacity  to  continue  the  work  of  employment, 
unless  the  injury  is  due  to  the  negligence  or  misconduct  of 
the  employee  injured — and  including  all  cases  where  as  a 
result  of  the  employee's  occupation  he,  without  any  negli- 
gence or  misconduct,  becomes  unable  to  carry  on  his  work, 
and  this  condition  continues  for  more  than  15  days.  The 
word  'accident'  is  employed  to  denote  the  happening  of 
some  unusual  event,  producing  death  or  injury  which  re- 
sults in  incapacity  for  work,  lasting  more  than  15  days. 
That  is  to  say,  within  the  language  of  the  statute  an  em- 
ployee may  be  injured  in  the  course  of  his  employment 
without  having  suffered  a  definite  accident. 

This  is  a  beneficent  statute,  in  the  nature  of  an  act 
granting  pensions  of  limited  duration  and  of  special  appli- 


408  MANUAL  OF  COMPENSATION  LAW 

cation.  The  language  employed  appears  to  me  to  be  clear 
and  unambiguous,  and  should  not  be  so  construed  as  to 
exclude  from  its  benefits  any  of  those  cases  which  it  fairly 
includes. 

In  my  opinion,  for  the  reasons  that  I  have  attempted  to 
indicate,  the  injury  as  you  set  it  forth  is  'an  injury'  within 
the  meaning  of  the  act  of  Congress  approved,  May  30,  1908, 
on  account  of  which  compensation  may  be  paid." 

§  272.  General  Illustrations  of  "Personal  Injuries"  Under 
Act  of  1908. 

An  artisan  or  laborer  employed  by  the  United  States 
in  the  construction  of  river  and  harbor  work,  who  con- 
tracted a  severe  cold  in  the  course  of  his  employment  result- 
ing in  pneumonia  and  which  incapacitated  him  for  duty  for 
a  period  lasting  more  than  15  days,  is  not  entitled  to  com- 
pensation under  the  act  of  May  30,  1908  (35  Stat.  556). 
The  word  'injury'  as  used  in  the  above  statute  is  in  no  sense 
suggestive  of  disease,  nor  has  it  ordinarily  any  such  signifi- 
cance. Opinion  of  May  17,  1909  (27  Op.  At.  Gen.  346),  re- 
viewed. In  re  claim  of  John  Sheeran  No.  3131,  28  Op.  At. 
Gen.  254;  Op.  Sol.  (1915)  207. 

Evidence  that  employee  was  strong  and  healthy  up  to 
time  he  complained  of  a  hurt  received  while  at  work  on 
heavy  lifting,  and  that  he  died  suddenly  a  few  days  there- 
after for  no  other  assignable  cause  is  sufficient  to  show  that 
he  sustained  some  internal  injury,  though  there  were  no 
external  manifestations  thereof.  In  re  claim  of  S.  A.  Pow- 
ers, Feb.  16,  1909;  No.  416;  Op.  Sol.  (1915)  214. 

Evidence  of  slight  blow  on  jaw  is  not  evidence  that 
tuberculosis  of  the  cervical  glands  causing  incapacity  is  an 
injury  within  the  act.  In  re  claim  of  Richard  Hicks,  May 
15,  1909;  No.  1063;  Op.  Sol.  (1915)  217. 

Frozen  feet  constitute  an  injury  within  the  act.  In  re 
claim  of  T.  F.  Luttrell,  May  21,  1909;  No.  852;  Op.  Sol. 
(1915)  219. 

A  physical  injury  which  aggravates  a  previous  ailment 
so  as  to  disable  an  employee,  where  disability  would  not 


FEDERAL  ACT  OF   1916  409 

have  been  caused  but  for  such  previous  ailment,  is  an  in- 
jury within  the  act.  In  re  claim  of  Philip  Jarvis,  Sept.  11, 
1909;  No.  1699;  Op.  Sol.  (1915)  219. 

An  employee  obeying  orders  of  his  superior  and  sub- 
mitting to  an  operation  (vaccination)  ordinarily  harmless, 
who  is  disabled  thereby,  is  injured  within  the  act.  In  re 
claim  of  C.  B.  Flora,  May  25,  1910;  No.  3338;  Op.  Sol. 
(1915)  226. 

Injuries  within  the  act  are  injuries  to  the  person,  or 
bodily  injuries,  and  hence  the  breaking  of  an  artificial  leg 
is  not  covered  by  the  statute.  In  re  claim  of  Eulogio  Rod- 
riguez, Oct.  29,  1910;  No.  3992;  Op.  Sol.  (1915)  227. 

An  accidental  injury  received  in  the  course  of  employ- 
ment but  arising  in  consequence  of  a  disease  is  an  injury 
within  the  act,  the  accident  being  regarded  as  the  proxi- 
mate, and  the  disease  as  the  remote,  cause.  In  re  claim  of 
E.  B.  Clements,  Nov.  7, 1910;  No.  4680;  Op.  Sol.  (1915)  228. 

The  fact  that  an  injury  may  be  classed  as  a  disease  does 
not  take  it  out  of  the  statute.  Sunstroke,  though  classed  as 
a  disease,  is  not  such  a  disease  as  may  be  contracted  in  the 
same  sense  as  ordinary  diseases  may  be,  but  is  an  injury 
of  an  accidental  nature,  and  is  covered  by  the  act.  In  re 
claim  of  J.  J.  Walsh,  Mar.  16,  1911;  No.  4585;  Op.  Sol. 
(1915)  231. 

A  severe  accidental  injury  which,  though  it  does  not 
incapacitate  the  employee,  exposes  him  to  an  infectious 
disease,  and  so  weakens  him  that  he  is  unable  to  withstand 
it,  may  thus  give  rise  to  a  disability  for  which  compensation 
is  payable.  In  re  claim  of  J.  B.  Atkinson,  June  24,  1911; 
No.  6687;  Op.  Sol.  (1915)  235. 

An  infection  of  the  hand  and  a  secondary  infection  of 
the  leg,  resulting  from  an  abrasion  of  the  skin  and  the  acci- 
dental introduction  of  a  foreign  substance,  is  an  injury 
within  the  act.  In  re  claim  of  L.  B.  Green,  Aug.  16,  1911; 
No.  6668;  Op.  Sol.  (1915)  237. 

A  disease,  not  contracted,  but  caused  by  physical  means, 
under  circumstances  involving  an  element  of  accident,  is 


410  MANUAL  OF  COMPENSATION  LAW 

an  injury  within  the  act.  Idiopathic  and  traumatic  dis- 
eases distinguished.  In  re  claim  of  Wm.  Murray,  Nov.  3, 
1911;  No.  7051;  Op.  Sol.  (1915)  239. 

An  employee  overtaken  while  at  work  by  a  disability 
due  to  some  unascertained  internal  disorder,  not  shown  to 
have  been  caused  by  any  accident  or  occurrence  in  the 
course  of  employment,  is  not  injured  within  the  act.  In  re 
claim  of  J.  V.  Trammell,  Nov.  9,  1911;  No.  7494;  Op.  Sol. 
(1915)  244. 

Disability  resulting  from  a  disease  directly  due  to  a 
physical  injury  of  an  accidental  nature,  or  lighted  up  there- 
by, is  an  injury  within  the  act.  In  re  claim  of  Washington 
Ellmore,  Apr.  13,  1912;  No.  8291;  Op.  Sol.  (1915)  245. 

A  disability  referable  to  no  definite  accident  or  occur- 
rence, though  arising  in  the  course  of  employment,  involv- 
ing chiefly  a  gradual  weakening,  wearing  out,  or  breaking 
down  of  the  employee,  is  not  an  injury  within  the  act.  In 
re  claim  of  Elizabeth  Hewitt,  May  21,  1912 ;  No.  8558 ;  Op. 
Sol.  (1915)  248. 

To  constitute  an  injury  within  the  act,  it  will  suffice  if 
an  element  of  accident  clearly  appears,  or  if  the  injury  is  of 
a  type  which,  in  the  interpretation  of  statutes  of  similar 
scope  and  purpose,  has  been  accepted  as  properly  included 
in  the  class  comprehensively  known  as  accidental  injuries. 
In  re  claim  of  J.  B.  Irving,  Aug.  3,  1912 ;  No.  8937 ;  Op.  Sol. 
(1915)  249. 

Incapacity  caused  by  the  inhalation  of  fine  dust  into  the 
lungs  in  the  course  of  employment  is  held  to  be  an  injury 
under  the  act.  In  re  claim  of  Edward  Edmonds,  June  23, 
1913;  Op.  Sol.  (1915)  259. 

Claimant  was  a  painter  and  in  the  course  of  his  em- 
ployment contracted  lead  poisoning,  an  occupational  dis- 
ease. Distinguishing  this  disease  from  pneumonia,  malaria, 
typhoid,  or  the  like,  it  was  held  that  the  incapacity  was  due 
to  an  injury  in  the  course  of  employment.  (This  opinion 
alters  the  previous  ruling  in  the  John  Treiman  and  C.  L. 
Schroeder  cases  on  this  subject,  found  at  pages  204,  210.) 


FEDERAL  ACT  OF  1916  411 

Op.  Sol.  (1915).  In  re  claim  of  Willard  E.  Jule,  July  28, 
1913;  Op.  Sol.  (1915)  261. 

The  employee  developed  a  case  of  acute  bronchitis  and 
lead  poisoning  as  a  result  of  the  inhalation  of  gas  fumes 
from  an  oxyacetylene-burning  machine,  and  it  was  held 
that  the  incapacity  was  due  to  an  injury.  In  re  claim  of 
C.  M.  Arata,  Dec.  31,  1913;  Op.  Sol.  (1915)  264. 

Claimant  was  engaged  in  scaling  the  inner  plating  of  a 
caisson.  Particles  of  the  red  lead  being  scaled  became  em- 
bedded in  sore  spots  on  the  face  or  were  inhaled  into  the 
system,  causing  incapacity.  Held  to  be  an  injury.  In  re 
claim  of  Randolph  A.  Thayer,  Jan.  12,  1914;  Op.  Sol. 
(1915)  266. 

An  injury  by  a  fall  which  lights  up  or  aggravates  a 
previous  ailment  causing  incapacity  was  held  to  be  an  in- 
jury within  the  act.  In  re  claim  of  Everett  Springer,  Feb. 
2,  1914;  Op.  Sol.  (1915)  267. 

Claimant  was  struck  in  the  eye  by  a  piece  of  steel,  caus- 
ing the  loss  of  eye.  The  injury,  while  permanent,  was  stat- 
ed by  the  United  States  hospital  service  physician  to  have 
no  bearing  on  the  physical  condition.  Held  that  he  was 
entitled  only  for  time  physically  incapacitated  by  the  in- 
jury. In  re  claim  of  Walter  E.  Holden,  Feb.  25,  1914;  Op. 
Sol.  (1915)  268. 

Employee  developed  cardiac  hypertrophy,  causing 
death,  as  a  result  of  the  inhalation  of  the  fumes  of  ether  in 
the  course  of  employment  in  a  "mixing  house"  at  the  Naval 
Proving  Ground  at  Indianhead,  Md.  Held  that  his  death 
resulted  from  an  injury.  In  re  claim  of  Basil  E.  Clark, 
Apr.  11,  1914;  Op.  Sol.  (1915)  270. 

The  employee  in  this  case  developed  typhoid  fever,  which 
turned  into  pneumonia  and  empyema.  It  was  claimed  that 
the  typhoid  was  caused  by  drinking  water  which  had  been 
contaminated  and  which  was  furnished  by  the  Government. 
It  was  decided  that  the  cause  of  incapacity  was  not  of  an 
accidental  nature  and  therefore  not  an  injury  within  the 


412  MANUAL  OF  COMPENSATION  LAW 

meaning  of  the  act.  In  re  claim  of  Robert  K.  Potter,  Aug. 
12,  1914;  Op.  Sol.  (1915)  272. 

Compare  Vennen  v.  New  Dell  Lumber  Co.,  154  N.  W. 
640,  L.  R.  A.  1916A  273,  which  takes  the  opposite  view. 

A  disease  not  contracted  but  caused  by  physical  means, 
under  circumstances  involving  an  element  of  accident,  is  an 
injury  within  the  act.  In  re  claim  of  Charles  J.  Withy, 
Nov.  12,  1914;  Op.  Sol.  (1915)  273. 

An  injury  caused  by  continuous  strain  due  to  the  nature 
of  the  work,  and  which  develops  gradually,  held  to  be  an 
injury  covered  by  the  act.  [Overrules  Crellin  case,  Govern- 
ment Printing  Office,  June  21,  1911;  Op.  Sol.  (1915)]  In 
re  claim  of  Margaret  B.  Sargent,  Jan.  7,  1915;  Op.  Sol. 
(1915)  275. 

A  physical  injury  which  aggravates  a  previous  ailment 
so  as  to  disable  an  employee,  when  disability  would  not  have 
been  caused  but  for  such  previous  ailment,  is  an  injury 
within  the  act.  Tuberculosis  superinduced  by  brass  poison- 
ing. In  re  claim  of  Edward  Devine,  Feb.  9,  1915 ;  Op.  Sol. 
(1915)  277. 

An  injury  caused  by  strain  from  rushing  work  under  a 
time-record  efficiency  system,  whereby  a  strong,  healthy 
man  was  kept  under  a  high  nerve-racking  tension  during 
every  minute  of  an  eight-hour  workday,  is  an  injury  within 
the  act.  In  re  claim  of  D.  C.  Manning,  Apr.  2,  1915 ;  Op. 
Sol.  (1915)  279. 

§  273.  Meaning  of  "While  in  the  Performance  of  His  Duty." 

These  words  are  perhaps  intended  to  be  narrower  than 
those  used  in  most  acts  to  describe  the  sphere  of  employ- 
ment covered  by  the  law.  An  accident  could  easily  "arise 
out  of  and  in  the  course  of  employment"  and  still  not  occur 
"while  in  the  performance  of  his  duty."  This  phrase  prob- 
ably means  something  similar  to  "scope  of  employment"  as 
used  at  common  law.  In  Missouri  Pac.  R.  R.  Co.  v.  Mackey, 
33  Kan.  298,  315 ;  6  Pac.  291,  it  was  said,  "When  we  speak  of 
duty  as  applied  to  a  servant  or  employee,  the  matter  in- 
volves his  service  or  business."  It  may  be  said  that  the 


FEDERAL  ACT  OF   1916  413 

above  phrase  refers  to  injuries  received  while  the  employee 
was  actually  doing  things  reasonably  incident  to  the  pur- 
poses for  which  he  was  employed.  See  Chapter  III  in  gen- 
eral and  §§  100-102  in  particular. 

§  274.  Meaning  of  "In  the  Course  of  Employment"  Under 
Act  of  1908. 

What  the  scope  of  this  term  is,  can  best  be  determined 
by  citing  the  cases  determined  by  the  solicitor  of  the  Labor 
Department. 

An  employee  who,  without  negligence  or  misconduct  on 
his  part,  is  struck  by  his  foreman  in  a  fit  of  anger  and  has 
his  arm  broken,  is  injured  in  the  course  of  his  employment. 
In  re  claim  of  Cornelius  Flemmings,  Nov.  24,  1909;  No. 
2086;  Op.  Sol.  (1915)  225. 

A  workman  employed  in  the  Canal  Zone,  injured  while 
riding  home  from  work  on  a  labor  train,  was  injured  in 
the  course  of  employment.  In  re  claim  of  William  Gerow, 
Nov.  16,  1908;  No.  130;  Op.  Sol.  (1915)  282. 

A  workman  injured  by  a  fall  while  in  act  of  leaving 
shop  at  close  of  day's  work  is  injured  in  course  of  employ- 
ment. In  re  claim  of  William  P.  Fahey,  Nov.  28,  1908 ;  No. 
155;  Op.  Sol.  (1915)  283. 

A  workman  employed  in  an  arsenal,  injured  while 
"ringing  out"  at  a  time  clock  at  the  close  of  the  day's  work, 
was  injured  in  the  course  of  employment.  In  re  claim  of 
E.  A.  Rugan,  Nov.  27,  1908;  No.  142;  Op.  Sol.  (1915)  285. 

A  fireman  employed  in  the  Canal  Zone,  injured  while 
performing  service  outside  territory  under  control  of  the 
United  States,  was  injured  in  the  course  of  employment.  In 
re  claim  of  James  Nellis,  Nov.  27,  1908;  No.  134;  Op.  Sol. 
(1915)  285. 

A  workman  injured  by  an  explosion  while  on  the  prem- 
ises of  the  Government  waiting  for  work  to  begin  is  injured 
in  course  of  employment.  In  re  claim  of  Pinna  Giovanni, 
Dec.  8,  1908;  No.  254;  Op.  Sol.  (1915)  287. 

A  workman  injured  on  a  highway  on  his  way  to  work 


414  MANUAL  OF  COMPENSATION  LAW 

is  not  injured  in  the  course  of  employment.  In  re  claim  of 
Joseph  Gilkey,  Feb.  20,  1909;  No.  520;  Op.  Sol.  (1915)  288. 

A  workman  in  the  Canal  Zone  injured  while  following 
a  customary  path  on  his  way  to  work,  on  the  premises  of 
his  employer  or  in  the  immediate  vicinity  thereof,  was  in- 
jured in  the  course  of  employment.  In  re  claim  of  Joseph 
Chambers,  May  15,  1909;  No.  862;  Op.  Sol.  (1915)  291. 

A  shop  boy  employed  to  work  a  punching  machine,  in- 
jured by  voluntarily  starting  a  rolling  machine  while  the 
former  machine  was  idle,  was  not  injured  in  the  course  of 
employment.  In  re  claim  of  Victorino  Morales,  June  1, 
1909;  No.  1114;  Op.  Sol.  (1915)  295. 

A  workman  bitten  by  a  mad  dog  while  attending  to  his 
duties  was  injured  in  the  course  of  employment.  In  re 
claim  of  E.  E.  Bailey,  July  7,  1909;  No.  1300;  Op.  Sol. 
(1915)  297. 

A  workman  whose  employment  required  him  to  occupy 
sleeping  and  living  quarters  furnished  by  the  Government, 
injured  after  hours,  but  at  quarters,  is  injured  in  course  of 
employment.  In  re  claim  of  C.  E.  Hott,  Mar.  5,  1910;  No. 
2736;  Op.  Sol.  (1915)  302. 

A  workman  injured  in  going  to  assistance  of  a  fellow 
workman,  attacked  by  a  third,  was  not  injured  in  the  course 
of  employment.  In  re  claim  of  G.  M.  Armistead,  June  13, 
1910;  No.  3543;  Op.  Sol.  (1915)  305. 

A  railroad  conductor  on  an  excursion  trip,  when  the 
train  was  run,  with  permission,  by  the  employees  for  their 
own  pleasure  was  not  injured  in  the  course  of  employment. 
In  re  claim  of  C.  C.  Fitzpatrick,  Aug.  20,  1910;  No.  4219; 
Op.  Sol.  (1915)  306. 

A  laborer  having  gotten  his  fingers  frozen  in  course  of 
employment,  who  later  burned  his  fingers  at  home  by  acci- 
dentally setting  fire  to  the  bandages,  was  not  injured  as  to 
the  burn  in  the  course  of  employment.  In  re  claim  of  A.  M. 
Rockwell,  Mar.  1,  1911;  No.  5820;  Op.  Sol.  (1915)  307. 

A  watchman  returning  from  work,  injured  after  alight- 
ing from  a  labor  train,  while  walking  on  the  adjoining 
track,  which  was  the  only  way  of  reaching  the  highway 


FEDERAL  ACT  OF   1916  415 

leading  to  his  home,  was  injured  in  the  course  of  employ- 
ment. In  re  claim  of  Joseph  Forde,  Mar.  8,  1911 ;  No.  5964; 
Op.  Sol.  (1915)  309. 

A  foreman  whose  duty  in  part  was  to  enforce  discipline, 
injured  while  going  to  stop  a  fight  between  two  of  his  men, 
was  injured  in  the  course  of  employment.  In  re  claim  of 
Wm.  Wharton,  Nov.  18,  1911;  No.  7521;  Op.  Sol.  (1915) 
315. 

A  workman  off  duty,  but  on  premises  of  employment, 
volunteering  a  piece  of  work  and  meeting  with  an  accident 
resulting  in  his  death,  was  not  injured  in  the  course  of 
employment.  In  re  claim  of  H.  G.  Simpson,  Apr.  13,  1912 ; 
No.  7436;  Op.  Sol.  (1915)  316. 

Where  a  laborer,  employed  by  the  United  States  in  the 
construction  of  river  and  harbor  work,  while  off  duty  went 
upon  a  bin  to  talk  with  the  man  emptying  gravel,  about 
going  home  the  following  Sunday,  and  in  the  act  of  leaving, 
voluntarily  and  with  no  emergency  for  immediate  action,  at- 
tempted to  empty  a  box  of  gravel,  and  in  so  doing  fell  over- 
board and  was  drowned,  the  accident  is  deemed  not  to  have 
arisen  within  the  course  of  his  employment  and  compensa- 
tion therefor  is  unauthorized  under  the  act  of  May  30,  1908 
(35  Stat.,  556).  In  re  claim  of  H.  G.  Simpson,  No.  7436. 
Opinion  of  At.  Gen.,  Op.  Sol.  (1915)  319. 

The  employee  was  furnished  quarters  on  a  boat  for  liv- 
ing purposes  by  the  Government  and  after  working  hours 
left  the  boat  to  visit  a  neighboring  town.  Upon  returning 
and  before  reaching  the  boat  used  as  quarters  he  was 
drowned.  It  was  held  that  death  did  not  occur  in  the  course 
of  employment.  In  re  claim  of  Edgar  Jackson,  Aug.  22, 
1913;  Op.  Sol.  (1915)  320. 

Employee  running  with  others  to  ring  the  time  clock 
at  the  noon  hour,  after  having  been  engaged  in  playing  ball, 
held  not  to  have  been  injured  in  the  course  of  employment. 
In  re  claim  of  David  Kramer,  Dec.  1,  1913;  Op.  Sol.  (1915). 
322. 

Claimant  was  on  his  way  home  after  working  hours  and 


416  MANUAL  OF  COMPENSATION  LAW 

while  still  on  the  Government  premises  was  injured.  Held 
to  have  occurred  in  the  course  of  employment.  In  re 
claim  of  Emanual  L.  Bernard,  Dec.  12,  1913;  Op.  Sol. 
(1915)  323. 

Claimant  fell  and  was  injured  while  going  through  the 
main  gate  of  a  navy  yard.  Held  to  be  injured  in  course  of 
employment.  In  re  claim  of  M.  Guerin,  Jan.  6,  1914;  Op. 
Sol.  (1915)  324. 

The  employee,  with  others,  was  furnished  living  quar- 
ters on  a  boat  by  the  Government.  Fellow  employees  who 
had  been  on  shore  were  returning  for  the  night,  and  de- 
cedent started  to  get  them  in  a  small  boat.  While  so  doing 
he  was  drowned.  Held  to  have  occurred  in  the  course  of 
employment.  In  re  claim  of  Bennie  House,  Jan.  14,  1914; 
Op.  Sol.  (1915)  325. 

The  employee  was  furnished  living  quarters  on  the 
premises.  While  en  route  from  a  store  thereon  to  his  quar- 
ters and  while  off  duty  he  stepped  aside  from  the  usual  path 
of  travel  to  observe  the  operations  of  an  electric  wood  saw. 
While  standing  there  a  piece  of  wood  was  thrown  from  the 
saw,  striking  and  killing  him.  Held  not  to  have  arisen  in 
the  course  of  employment.  In  re  claim  of  Thomas  J.  Gilson, 
Mar.  14,  1914;  Op.  Sol.  (1915)  326. 

The  employee  was  a  laborer  or  fire  patrolman  in  the 
Forest  Service,  and  while  in  quarters  furnished  by  the 
Government  for  living  purposes  he  attempted  to  clean  a 
pistol  belonging  to  a  fellow  employee.  Held  not  to  have 
been  injured  in  the  course  of  employment.  In  re  claim  of 
William  P.  Brown,  June  11,  1914;  Op.  Sol.  (1913)  328. 

The  employee  was  engaged  by  a  Government  official  on 
one  day  to  proceed  to  a  certain  point  on  a  succeeding  day, 
carrying  with  him  for  a  distance  of  8  miles  certain  tools 
and  equipment  of  the  Government  which  were  necessary 
for  the  work  in  hand  to  be  done.  Before  reaching  the  desti- 
nation the  employee  was  injured  by  one  of  the  tools  he 
was  carrying.  Held  in  the  course  of  employment,  which 


FEDERAL  ACT  OF   1916  417 

began  when  he  started  on  the  journey  with  the  tools.  In  re 
claim  of  S.  J.  Connor,  Aug.  12,  1914;  Op.  Sol.  (1915)  330. 

Messenger  boy  employed  at  navy  yard  fell  from  bicycle 
and  was  injured  while  in  the  yard.  Held  that  his  subse- 
quent death  was  traceable  to  the  injury  received  at  the 
time  he  fell.  In  re  claim  of  John  F.  McSorley,  Sept.  4,  1914 ; 
Op.  Sol.  (1915)  331. 

Employee  on  the  premises  during  noon  hour  stopped  to 
pick  up  a  baseball  from  the  street  to  return  it  to  players  in 
the  field  when  he  was  struck  by  an  automobile.  Held  not 
injured  in  the  course  of  employment.  In  re  claim  of  John 
J.  Schlechter,  Sept.  26,  1914;  Op.  Sol.  (1915)  331. 

Employee  walking  along  railroad  track  of  Reclamation 
Service  when  going  to  his  work  and  was  struck  by  a  train 
of  that  service  and  killed.  Held  that  he  was  in  the  course 
of  his  employment.  In  re  claim  of  Ramon  Z.  Gonzales, 
Jan.  21,  1915;  Op.  Sol.  (1915)  333. 

Employee  had  living  quarters  on  boat  of  Government. 
While  off  duty,  at  about  5 :30  a.  m.,  he  left  his  bedroom  for 
some  unknown  reason,  fell  overboard,  and  was  drowned. 
Held  to  be  in  the  course  of  the  employment.  In  re  claim  of 
Samuel  Jenkins,  Jan.  26,  1915;  Op.  Sol.  (1915)  334. 

Employee  was  a  cook  in  the  river  and  harbor  work,  and 
while  going  to  work,  crossing  the  river  in  a  launch  of  a 
private  party,  he  was  drowned.  Held  not  in  course  of  em- 
ployment. In  re  claim  of  Aaron  Ware,  Jan.  29,  1915;  Op. 
Sol.  (1915)  334. 

A  colored  youth,  16  years  of  age,  employed  upon  river 
and  harbor  work,  left  his  work,  taking  a  Government  skiff 
to  go  across  the  river  for  some  reason  unknown  to  anyone 
but  himself.  As  there  was  no  definite  evidence  to  the  con- 
trary, it  was  considered  that  he  was  doing  something  inci- 
dental or  necessary  to  his  occupation.  In  re  claim  of  Wal- 
ter Webb,  Mar.  29,  1915;  Op.  Sol.  (1915)  336. 

§  275.  Willful  Misconduct  of  Employee  As  Proximate  Cause 
of  Injury. 

Words  to  the  same  effect  are  used  in  the  Wisconsin  act. 


418  MANUAL  OF  COMPENSATION  LAW 

See  §  222,  citing  Nekoosa-Ed wards  Paper  Co.  v.  Industrial 
Com.  of  Wis.,  154  Wis.  105,  141  N.  W.  1013,  L.  R.  A.  1916A 
348.  A  treatment  of  willful  misconduct  under  the  acts  of 
the  various  States  is  found  in  Chapter  IX,  §§  218-222. 

§  276.  "Willful  Misconduct"  Under  the  Act  of  1908. 

The  act  of  1908  used  the  words  "negligence  or  miscon- 
duct." This  phrase  is  by  no  means  synonymous  with  "will- 
ful misconduct"  as  used  in  the  act  of  1916.  Nevertheless 
the  following  cases,  decided  by  the  Solicitor  for  the  Labor 
Department,  under  the  act  of  1908,  are  cited  because  on 
the  facts  they  would  probably  come  within  the  meaning  of 
the  term  "willful  misconduct"  as  generally  understood  in 
other  jurisdictions  where  the  term  is  used.  Mere  negli- 
gence as  commonly  understood  does  not  defeat  a  claim  un- 
der the  act  of  1916. 

In  re  claim  of  W.  H.  Taylor,  Oct.  5,  1908 ;  No.  23 ;  Op. 
Sol.  (1915)  411,  the  Solicitor  said: 

"I  have  examined  the  above  claim,  together  with  the  evi- 
dence submitted  therewith,  and  am  of  opinion  that  the 
claimant  is  not  entitled  to  compensation,  for  the  reason  that 
the  injury  was  due  to  the  negligence  of  the  claimant.  The 
statements  of  the  claimant  himself  are  sufficient  to  bar  him 
from  the  benefits  of  the  act.  In  the  first  section  the  act  pro- 
vides that  no  compensation  shall  be  paid  where  the  injury 
is  due  to  the  negligence  or  misconduct  of  the  employee  in- 
jured, and  the  claimant  in  his  examination  stated  that  the 
injury  was  caused  by  a  wooden  plug  striking  him  in  the 
eye;  that  the  said  plug  was  blo'wn  out  of  a  pump  in  conse- 
quence of  the  opening  of  a  certain  valve  by  an  apprentice 
boy;  that  he  directed  the  boy  to  open  the  valve;  that  he 
knew  that  the  opening  of  the  valve  while  a  certain  other 
valve  was  likewise  open  would  cause  the  plug  to  blow  out, 
and  that  it  was  dangerous ;  that  it  was  his  business  to  know 
whether  the  latter  valve  was  open  or  closed  before  giving 
his  order  to  the  boy,  but  that  in  his  hurry  to  complete  his 
job  before  the  closing  hour  he  simply  overlooked  it.  In 
answer  to  a  question  as  to  whether  he  would  admit  that 


FEDERAL  ACT  OF  1916  419 

the  injury  was  the  result  of  his  own  carelessness,  in  which 
no  one  else  had  a  share,  he  said: 

'Yes;  I  admit  it  and  have  learned  a  lesson  from  it,  too. 
The  lesson  I  have  learned  is  this:  That  I  won't  do  any 
more  "rush  work"  and  take  chances  of  getting  killed  or 
injured.' 

It  follows  that  the  injury  resulted  from  the  negligence 
of  the  claimant  rather  than  from  any  other  cause." 

In  re  claim  of  Grandville  Hunt,  Nov.  2,  1908 ;  No.  419 ; 
Op.  Sol.  (1915)  413,  the  Solicitor  said: 

"The  above  claim  is  referred  to  this  office  with  special 
reference  to  the  question  of  negligence.  The  claim  officer 
reports  that  the  claimant  was  returning  from  his  work  on 
a  labor  train  when  he  attempted  to  get  off  the  train  between 
two  cars  while  the  train  was  in  motion,  and  in  doing  so  he 
stumbled  and  a  car  ran  over  his  left  foot,  causing  the  in- 
jury. 

It  does  not  appear  to  me  that  any  ordinarily  prudent 
man  would  attempt  to  get  off  a  moving  train  between  two 
cars.  Nonnecessity  or  excuse  for  this  course  is  shown,  and 
the  division  engineer  expresses  the  opinion  that  the  injury 
was  due  to  the  negligence  or  misconduct  of  the  injured 
employee. 

I  conclude,  therefore,  that  the  claimant  was  guilty  of 
such  negligence  as  to  bar  his  claim  under  the  statute." 

In  re  claim  of  Frank  Alston,  Nov.  27,  1908;  No.  188; 
Op.  Sol.  (1915)  417,  the  Solicitor  said: 

"This  claim  is  based  upon  a  slight  bruise  on  the  right 
leg 'below  the  knee,  incurred  on  September  16,  1908,  while 
claimant  was  assisting  in  placing  a  water  pipe  in  position. 
The  claimant  was  incapacitated  for  more  than  15  days  and 
was  injured  in  the  course  of  his  employment.  The  report- 
ing officer  states  that  the  accident  was  due  to  the  negligence 
or  misconduct  on  the  part  of  the  injured  employee. 

It  appears  that  Alston  was  engaged,  with  a  gang  of 
other  laborers,  in  removing  a  6-inch  water  pipe  from  a 
ditch.  He  entered  the  ditch  to  make  a  rope  fast  to  one  end 


420  MANUAL  OF  COMPENSATION  LAW 

of  the  pipe  and  after  doing  so  was  told  by  the  foreman  to 
get  out  of  the  way  of  the  pipe.  Instead  of  doing  this,  he 
stepped  to  the  other  side  of  the  pipe  and  the  foreman  again 
told  him  to  get  entirely  out  of  the  way.  Alston  replied 
that  he  was  all  right  and  began  pulling  upon  the  pipe  to 
help  the  other  men  who  were  pulling  from  the  outside  of 
the  ditch.  The  pipe  swung  around  and  struck  Alston,  caus- 
ing his  injury. 

This  appears  to  me  a  plain  case  of  negligence,  in  taking 
a  needless  risk,  and  of  misconduct,  in  practically  disobey- 
ing the  orders  of  his  superior. 

One  'may  not  close  his  eyes  to  obvious  and  dangerous 
conditions  and  expect  to  recover  in  case  of  accident.'  (Wil- 
liams v.  Choctaw  O.  &  G.  R.  Co.,  149  Fed.  104.)  Even  a 
posted  warning  is  generally  sufficient  to  bar  recovery 
where  the  employee  disregards  such  warning.  Thus,  where 
a  warning  was  posted  that  servants  must  not  use  a  tram- 
way as  means  of  access  to  a  mine  and  though  the  superin- 
tendent knew  it  was  sometimes  violated,  a  servant  using 
the  tramway  could  not  recover.  (Boyle  v.  Columbian  Fire 
Proofing  Co.,  182  Mass.  93.) 

I  am  of  opinion,  therefore,  that  claimant's  injury  was 
due  to  his  own  negligence  or  misconduct  and  that  he  should 
not  recover." 

In  re  claim  of  Nicolas  Bacema,  Apr.  7,  1909;  No.  727; 
Op.  Sol.  (1915)  420,  the  Solicitor  said: 

"This  case  is  submitted  with  reference  to  the  question 
whether  the  injury  was  the  result  of  the  claimant's  negli- 
gence or  misconduct. 

It  appears  that  claimant,  a  laborer,  went  under  a  car  of 
a  train  to  which  an  engine  was  attached,  to  shelter  himself 
from  the  rain.  The  engineer,  not  knowing  that  said  claim- 
ant was  under  the  car,  started  the  train  and  a  wheel  of  the 
car  ran  over  the  toes  of  claimant's  right  foot.  Claimant 
had  been  told  several  times  not  to  go  under  any  train,  and 
on  this  particular  occasion  was  warned  by  his  foreman  to 
get  out  before  the  train  had  started. 


FEDERAL  ACT  OF   1916  421 

This  is  a  plain  case  of  gross  negligence  and  misconduct. 
No  prudent  man  would  get  under  a  train  having  an  engine 
attached.  Hence  this  man  would  have  been  negligent  if  he 
had  not  received  any  warning  at  all,  because  there  is  no 
need  of  a  specific  warning  against  an  obviously  dangerous 
situation.  (Gibson  v.  Torbett,  115  la.  163.)  Recovery  can 
not  be  had  where  the  injury  was  the  result  of  disobedience 
to  warnings.  (Hastorf  v.  Hudson  River  Stone  Supply  Co., 
110  Fed.  669.) 

It  is  my  opinion  that  claimant  should  not  be  compen- 
sated." 

In  re  claim  of  J.  W.  Roberts,  May  15,  1909 ;  No.  1001 ; 
Op.  Sol.  (1915)  422,  the  Solicitor  said:  "This  case  is  sub- 
mitted with  reference  to  the  question  whether  the  injury 
was  the  result  of  the  claimant's  own  negligence  or  miscon- 
duct. It  appears  that  he  was  helping  to  dig  a  trench  2  feet 
wide  6  feet  into  a  sand  bank  when  one  wall  caved  in  upon 
him  and  he  was  injured.  His  superior  officer  reported  neg- 
ligence and  misconduct  on  the  claimant's  part  because  he 
remained  in  the  trench  after  being  twice  told  to  come  out. 
Such  is  the  testimony  of  the  foreman.  Another  witness,  a 
fellow  laborer,  was  sure  that  the  claimant  was  emphatically 
ordered  out  of  the  trench  at  least  once;  that  the  foreman 
was  careful  and  not  to  blame;  that  claimant  seemed  to 
want  to  make  it  appear  that  he  was  brave;  and  that  when 
the  foreman  ordered  him  out  claimant  said  that  there  was 
no  danger  and  that  he  could  tell  when  the  dirt  was  going  to 
cave  in,  in  time  to  get  out.  Another  fellow  laborer  states 
that  claimant  was  warned  of  the  danger  and  that  orders 
had  been  given  to  properly  brace  the  trench,  and  that  claim- 
ant upon  being  ordered  to  come  out  had  refused,  stating 
that  he  had  worked  in  more  dangerous  places  than  that. 
The  statements  of  the  other  witness  are  not  material,  as  he 
was  working  on  the  opposite  side  of  the  trench  and  heard 
nothing.  His  statements  do  not  contradict  the  other  testi- 
mony. 

This  is  a  plain  case  of  misconduct,  in  disobeying  direct 


422  MANUAL  OF  COMPENSATION  LAW 

and  necessary  orders,  and  of  negligence  besides,  in  persist- 
ing in  remaining  in  a  dangerous  situation. 

This  claimant  was  not  only  negligent,  he  was  reckless. 
'To  be  reckless  is  to  be  utterly  regardless  of  consequences. 
(La  Fayette  Ry.  Co.  v.  Adams,  26  Ind.  76;  State  v.  Bridg- 
man,  94  N.  C.  888.)  Recklessness,  instead  of  being  merely 
the  want  of  ordinary  care,  is  more  nearly  the  want  of  any 
care.  And  so  it  is  understood  in  common  speech.'  (Plum- 
mer  v.  Kansas  City,  48  Mo.  App.  484.) 

It  is  my  opinion  that  Roberts  was  grossly  negligent,  and 
is  not  entitled  to  compensation." 

In  re  claim  of  James  Dale,  Oct.  5,  1910 ;  No.  4584 ;  Op. 
Sol.  (1915)  437,  the  Solicitor  said : 

"The  above-mentioned  claim  is  forwarded  to  this  office 
with  special  reference  to  the  question  whether  the  accident 
was  due  to  the  negligence  or  misconduct  of  the  claimant. 

It  appears  from  the  record  that  claimant  received  his 
injury  while  attempting  to  board  a  ferryboat,  which  is  fur- 
nished by  the  Government,  after  the  same  had  started  on  its 
trip.  In  attempting  to  get  aboard  he  had  made  a  jump,  but 
instead  of  landing  on  the  boat  he  fell  into  the  water,  evi- 
dently striking  the  stern  of  the  boat  in  his  fall. 

There  are  furnished  statements  from  the  corporal  of 
the  Marine  Corps  in  charge  of  the  ferry  float' and  from  the 
sentry  in  charge  of  the  boat.  The  former  states  that  he 
attempted  to  stop  a  gang  of  men  who  were  going  to  board 
the  boat,  but  they  rushed  on  by  him ;  that  all  except  the  in- 
jured man  stopped  when  they  realized  that  the  boat  had 
left  the  dock. 

The  facts  clearly  show  that  claimant  was  injured  by  at- 
tempting to  jump  on  the  boat  after  it  had  left  the  wharf. 
Such  an  act  would  appear  to  be  a  voluntary  exposure  to  an 
obvious  danger  and  one  which  an  ordinarily  prudent  man 
would  not  have  done.  This  latter  fact  is  established  when 
it  is  seen  that  all  the  other  men  refrained  from  jumping 
when  they  realized  that  the  boat  had  started.  I  conclude 
that  claimant  in  this  case  was  guilty  of  negligence  and, 


FEDERAL  ACT  OF   1916  423 

therefore,  can  not  be  compensated  for  time  lost  oh  account 
of  the  accident." 

Positive  rules  were  posted  in  a  navy  yard  that  employees 
doing  work  likely  to  result  in  injury  to  the  eyes  should  wear 
goggles  or  shields.  The  claimant  excused  his  disobedience 
by  saying  he  could  not  work  well  with  shields  on.  It  was 
held  that  the  violation  of  a  positive  rule  or  instruction  di- 
rectly resulting  in  injury  amounts  to  negligence  or  mis- 
conduct. In  re  claim  of  Antonio  Pagliaru.o,  Nov.  30,  1914; 
Op.  Sol.  (1915)  503. 

In  order  that  the  violation  of  a  rule  or  regulation  shall 
constitute  negligence  or  misconduct  it  must  appear  that 
reasonable  efforts  have  been  made  to  enforce  the  same.  In 
re  claim  of  George  W.  Wilhelm,  Mar.  29,  1915;  Op.  Sol. 
(1915)  508. 

The  violation  of  a  positive  rule  or  instruction  directly 
resulting  in  injury  amounts  to  negligence  or  misconduct; 
but  the  rule  or  regulation  must  be  a  reasonable  one ;  it  must 
have  been  known  to  the  employee,  and  it  must  have  been 
enforced.  The  disregard  of  a  rule  which  has  become  a  dead 
letter  is  not  necessarily  negligence.  In  re  claim  of  C.  A. 
Weigand,  Aug.  30,  1909;  No.  1662;  Op.  Sol.  (1915)  404. 

§  277.  Employee's  Intention  to  Bring  About  the  Injury. 

For  construction  of  similar  language  used  in  the  acts  of 
the  various  States  see  chapter  IX,  §§  218-225. 

§  278.  Intoxication  As  Proximate  Cause  of  Injury  or  Death. 

In  some  of  the  State  workmen's  compensation  acts  in- 
•toxication  of  the  injured  employee  is  included  in  the  phrase 
"willful  misconduct."     For  treatment  of  this  subject  see 
chapter  IX,  §  222. 

SECTION  2. 
Waiting  Period. 

§  2.  That  during  the  first  three  days  of  dis- 
ability the  employee  shall  not  be  entitled  to  com- 
pensation except  as  provided  in  section  nine.  No 
compensation  shall  at  any  time  be  paid  for  such 
period. 


424  MANUAL  OF  COMPENSATION  LAW 

Compare  with  provisions  for  period  of  waiting  generally 
under  the  acts,  chapter  IV,  §  127. 

§  279.  Waiting  Period  Under  Act  of  1908. 

The  waiting  period  under  the  act  of  1908  was  fifteen 
days  and  no  compensation  was  due  until  the  disability  re- 
sulting from  the  injury  had  exceeded  that  time.  But  un- 
der the  act  of  1916  this  period  of  waiting  has  been  re- 
duced to  three  days.  There  are  questions  concerning  the 
waiting  period  in  general  which  are  applicable  regardless 
of  the  length  of  the  period.  The  decisions  of  the  solicitor 
for  the  department  of  labor  under  the  act  of  1908  may  be 
useful  in  arriving  at  a  solution  of  these  questions. 

§  280.  The  Day  When  the  Injury  Occurred  Must  Be  Counted 
As  the  First  Day  of  Disability. 

In  re  claim  of  Scymore  Fogg,  Nov.  24,  1908;  No.  Ill; 
Op.  Sol  (1915)  509,  it  was  said:  "As  a  matter  of  practical 
necessity,  some  point  of  time  must  be  fixed  from  which 
to  compute  the  period  limited,  and,  all  things  considered, 
the  most  available  point  appears  to  be  the  hour  when  the 
injury  occurred.  It  is  immaterial  in  this  respect  whether 
fractions  of  a  day  are  disregarded  and  the  entire  day  of 
the  injury  included,  or  whether  it  be  presumed  that  since 
the  injury,  except  by  possibility,  can  never  happen  on  the 
last  moment  of  the  day;  that  the  incapacity  for  work  en- 
dures for  some  portion  of  the  day.  In  either  case  when, 
the  incapacity  lasts  for  15  days  thereafter,  the  injury  con- 
tinues for  'more'  than  15  days.  The  fairness  of  this  rule 
will  more  clearly  appear  from  a  consideration  of  the  only 
alternative,  namely,  to  eliminate  entirely  the  day  of  the 
injury.  If  this  view  were  taken,  the  injury  would  not  con- 
tinue for  more  than  15  days  until  16  days  had  elapsed,  but 
16  days  is  not  the  period  limited  by  the  statute." 

To  the  same  effect,  was  the  ruling  in  re  claim  of  Frank 
E.-  Taylor,  Nov.  19,  1914;  Op.  Sol.  (1915)  542. 


FEDERAL  ACT  OF   1916  425 

§  281.  The  Days  of  Disability  Need  Not  Be  Consecutive 
Days. 

In  re  claim  of  W.  S.  Frates,  Apr.  30,  1909 ;  No.  865 ; 
Op.  Sol.  (1915)  510,  it  was  said:  "The  question  involved 
in  this  case  is,  therefore,  did  the  injury  and  resulting  in- 
capacity continue  for  'more  than  15  days?'  The  injury 
did  continue  for  more  than  15  days,  for  it  began  at  the  time 
of  the  accident  on  the  morning  of  December  12,  1908,  and 
continued  until  the  morning  of  January  4,  1909.  The  first 
incapacity  was  on  the  same  day,  when  the  claimant  quit 
work  to  have  his  wound  dressed.  The  injury  and  resulting 
incapacity  endured,  therefore,  during  a  portion  of  the  12th 
day  of  December.  If  the  injury  and  resulting  incapacity 
endured  for  15  full  days  besides  this,  it  brings  the  case 
within  the  purview  of  the  act. 

The  claimant,  after  having  his  wound  dressed,  resumed 
his  work  and  continued  to  work  during  working  hours  un- 
til the  close  of  work  on  Saturday  night,  December  19.  The 
next  day,  Sunday,  the  record  shows,  he  consulted  a  phy- 
sician, who  found  his  hand  badly  infected.  I  think  it  is 
fair,  therefore,  to  conclude  that  the  incapacity  for  work 
existed  on  Sunday,  December  20,  although  it  was  not  a 
regular  working  day.  Furthermore,  the  physician  certi- 
fies that  the  claimant  was  incapacited  .from  December  20, 
1908,  to  January  4,  1909.  Construing  the  act  liberally  in 
favor  of  the  claimant,  in  accordance  with  the  general  prin- 
ciples governing  the  construction  of  such  statutes,  it  ap- 
pears that  the  claimant  was  incapacitated  for  15  days  in 
addition  to  the  time  necessarily  taken  to  dress  the  wound." 

In  re  claim  of  0.  P.  Wells,  Dec.  15,  1908 ;  No.  135 ;  Op. 
Sol.  (1915)  515,  it  was  said: 

"It  can  not  be  assumed  that  the  incapacity  which  ex- 
isted on  Saturday  and  which  also  existed  on  Monday  was 
suspended  on  the  intervening  Sunday.  It  would  be  unrea- 
sonable to  charge  the  injured  employee  with  being  able  to 
resume  work  merely  because  there  was  nov  opportunity  to 
work.  It  is  different,  however,  where  the  injured  employee 


426  MANUAL  OF  COMPENSATION  LAW 

does  actually  resume  work.  It  can  not  be  assumed  that 
he  is  incapacitated  for  work  when  he  is  actually  at  work. 
Therefore,  the  days  on  which  he  is  able  to  work  and  on 
which  he  does  work  can  not  be  counted  in  measuring  the 
period  of  incapacity.  But  as  the  right  to  compensation 
arises  when  the  incapacity  has  amounted  to  more  than  15 
days,  and  there  is  nothing  in  the  act  to  indicate  that  the 
incapacity  must  be  without  a  break,  I  am  of  opinion  that 
the  days  of  incapacity,  whether  consecutive  or  in  broken 
periods,  should  be  added  together,  and  when  they  amount 
to  'more  than  15  days'  the  law  operates  to  grant  the  com- 
pensation." 

SECTION  3. 
Amount  of  Compensation  for  Total  Disability. 

§  3.  That  if  the  disability  is  total  the  United 
States  shall  pay  to  the  disabled  employee  during 
such  disability  a  monthly  compensation  equal  to 
sixty-six  and  two-thirds  per  centum  of  his  month- 
ly Pay>  except  as  hereinafter  provided. 

For  treatment  of  total  disability  see  Chapter  IV  in 
general  and  §§  128,  131,  132,  184,  135  in  particular. 

SECTION  4. 

Amount  of  Compensation  for  Partial  Disability. 
§  4.  That  if  the  disability  is  partial  the  United 
States  shall  pay  to  the  disabled  employee  during 
such  disability  a  monthly  compensation  equal  to 
sixty-six  and  two-thirds  per  centum  of  the  differ- 
ence between  his  monthly  pay  and  his  monthly 
wage-earning  capacity  after  the  beginning  of  such 
partial  disability.  The  commission  may,  from 
time  to  time,  require  a  partially  disabled  employee 
to  make  an  affidavit  as  to  the  wages  which  he  is 
then  receiving.  In  such  affidavit  the  employee  shall 
include  a  statement  of  the  value  of  housing,  board, 
lodging,  and  other  advantages  which  are  received 
from  the  employer  as  a  part  of  his  remuneration 
and  which  can  be  estimated  in  money.  If  the  em- 
ployee, when  required,  fails  to  make  such  affidavit, 
,  he  shall  not  be  entitled  to  any  compensation  while 


FEDERAL  ACT  OF  1916  427 

such  failure  continues,  and  the  period  of  such 
failure  shall  be  deducted  from  the  period  during 
which  compensation  is  payable  to  him. 

For  treatment  of  partial  disability  under  the  acts  gen- 
erally see  Chapter  IV  and  §§  128,  133,  139,  141,  in  par- 
ticular. 

SECTION  5. 

No  Compensation  Where  Suitable  Work  Is  Refused. 
§  5.  That  if  a  partially  disabled  employee  re- 
fuses to  seek  suitable  work  or  refuses  or  neglects 
to  work  after  suitable  work  is  offered  to,  pro- 
cured by,  or  secured  for  him,  he  shall  not  be  en- 
titled to  any  compensation. 

SECTION  6. 
Maximum  and  Minimum  Compensation. 

§  6.  That  the  monthly  compensation  for  total 
disability  shall  not  be  more  than  $66.67  nor  less 
than  $33.33,  unless  the  employee's  monthly  pay  is 
less  than  $33.33,  in  which  case  his  monthly  com- 
pensation shall  be  the  full  amount  of  his  monthly 
pay.  The  monthly  compensation  for  partial  dis- 
ability shall  not  be  more  than  $66.67.  In  the  case 
of  persons  who  at  the  time  of  the  injury  were  mi- 
nors or  employed  in  a  learner's  capacity  and  who 
were  not  physically  or  mentally  defective,  the  com- 
mission shall,  on  any  review  after  the  time  when 
the  monthly  wage-earning  capacity  of  such  per- 
sons would  probably,  but  for  the  injury,  have  in- 
creased, award  compensation  based  on  such  prob- 
able monthly  wage-earning  capacity.  The  commis- 
sion may,  on  any  review  after  the  time  when  the 
morithly  wage-earning  capacity  of  the  disabled 
employee  would  probably,  irrespective  of  the  in- 
jury, have  decreased  on  account  of  old  age,  award 
compensation  based  on  such  probable  monthly 
wage-earning  capacity. 

SECTION  7. 

No  Salary  or  Pay  During  Compensation  Period. 
§  7.     That  as  long  as  the  employee  is  in  re- 


428  MANUAL  OF  COMPENSATION  LAW 

ceipt  of  compensation  under  this  Act,  or,  if  he  has 
been  paid  a  lump  sum  in  commutation  of  install- 
ment payments,  until  the  expiration  of  the  period 
during  which  such  installment  payments  would 
have  continued,  he  shall  not  receive  from  the 
United  States  any  salary,  pay,  or  remuneration 
whatsoever  except  in  return  for  services  actually 
performed,  and  except  pensions  for  service  in  the 
Army  or  Navy  of  the  United  States. 

SECTION  8. 
Annual  or  Sick  Leaves  Added  to  Period  of  Compensation. 

§  8.  That  if  at  the  time  the  disability  begins 
the  employee  has  annual  or  sick  leave  to  his  credit 
he  may,  subject  to  the  approval  of  the  head  of  the 
department,  use  such  leave  until  it  is  exhausted, 
in  which  case  his  compensation  shall  begin  on  the 
fourth  day  of  disability  after  the  annual  or  sick 
leave  has  ceased. 

SECTION  9. 
Medical  Attention  Immediately  After  Injury. 

§  9.  That  immediately  after  an  injury  sus- 
tained by  an  employee  while  in  the  performance 
of  his  duty,  whether  or  not  disability  has  arisen, 
and  for  a  reasonable  time  thereafter,  the  United 
States  shall  furnish  to  such  employee  reasonable 
medical,  surgical,  and  hospital  services  and  sup- 
plies unless  he  refuses  to  accept  them.  Such  serv- 
ices and  supplies  shall  be  furnished  by  United 
States  medical  officers  and  hospitals,  but  where 
this  is  not  practicable  shall  be  furnished  by  priv- 
ate physicians  and  hospitals  designated  or  ap- 
proved by  the  commission  and  paid  for  from  the 
employee's  compensation  fund.  If  necessary  for 
the  securing  of  proper  medical,  surgical,  and  hos- 
pital treatment,  the  employee,  in  the  discretion  of 
the  commission,  may  be  furnished  transportation 
at  the  expense  of  the  employee's  compensation 
fund. 

See  Chapter  VII  dealing  with  the  treatment  of  injuries 
under  the  acts  generally. 


FEDERAL  ACT  OF   1916  429 

SECTION  10. 
To  Whom  Compensation  Is  Payable  in  Case  of  Death. 

§  10.  That  if  death  results  from  the  injury 
within  six  years  the  United  States  shall  pay  to  the 
following  persons  for  the  following  periods  a 
monthly  compensation  equal  to  the  following  per- 
centages of  the  deceased  employee's  monthly  pay, 
subject  to  the  modification  that  no  compensation 
shall  be  paid  where  the  death  takes  place  more 
than  one  year  after  the  cessation  of  disability  re- 
sulting from  such  injury,  or,  if  there  has  been  no 
disability  preceding  death,  more  than  one  year 
after  the  injury : 

(A)  To  the  widow,  if  there  is  no  child,  thirty- 
five  per  centum.    This  compensation  shall  be  paid 
until  her  death  or  marriage. 

(B)  To  the  widower,  if  there  is  no  child,  thir- 
ty-five per  centum  if  wholly  dependent  for  support 
upon  the  deceased  employee   at   the   time   of  her 
death.     This  compensation  shall  be  paid  until  his 
death  or  marriage. 

(C)  To  the  widow  or  widower,  if  there  is  a 
child,  the  compensation  payable  under  clause  (A) 
or  clause  (B)  and  in  addition  thereto  ten  per  cen- 
tum for  each  child,  not  to  exceed  a  total  of  sixty- 
six  and  two-thirds  per  centum  for  such  widow  or 
widower  and  children.    If  a  child  has  a  guardian 
other  than  the  surviving  widow  or  widower,  the 
compensation  payable  on  account  of  such  child 
shall  be  paid  to  such  guardian.    The  compensation 
payable  on  account  of  any  child  shall  cease  when 
he  dies,  marries,  or  reaches  the  age  of  eighteen,  or, 
if  over  eighteen,  and  incapable  of  self-support,  be- 
comes capable  of  self-support. 

(D)  To  the  children,  if  there  is  no  widow  or 
widower,  twenty-five  per  centum  for  one  child  and 
ten  per  centum  additional  for  each  additional  child, 
not  to  exceed  a  total  of  sixty-six  and  two-thirds 
per  centum,  divided  among  such  children  share 
and  share  alike.     The  compensation  of  each  child 
shall  be  paid  until  he  dies,  marries,  or  reaches  the 
age  of  eighteen,  or,  if  over  eighteen  and  incapable 
of  self-support,  becomes  capable  of  self-support. 


430  MANUAL  OF  COMPENSATION  LAW 

The  compensation  of  a  child  under  legal  age  shall 
be  paid  to  its  guardian. 

(E)  To  the  parents,  if  one  is  wholly  dependent 
for  support  upon  the  deceased  employee  at  the  time 
of  his  death  and  the  other  is  not  dependent  to  any 
extent,  twenty-five  per  centum;  if  both  are  wholly 
dependent,  twenty  per  centum  to  each ;  if  one  is  or 
both  are  partly  dependent,  a  proportionate  amount 
in  the  discretion  of  the  commission. 

The  above  percentages  shall  be  paid  if  there  is 
no  widow,  widower,  or  child.  If  there  is  a  widow, 
widower,  or  child  there  shall  be  paid  so  much  of 
the  above  percentages  as,  when  added  to  the  total 
percentages  payable  to  the  widow,  widower,  and 
children,  will  not  exceed  a  total  of  sixty-six  and 
two-thirds  per  centum. 

(F)  To  the  brothers,   sisters,   grandparents, 
and  grandchildren,  if  one  is  wholly  dependent  up- 
on the  deceased  employee  for  support  at  the  time 
of  his  death,  twenty  per  centum  to  such  depend- 
ent ;  if  more  than  one  are  wholly  dependent,  thirty 
per  centum,  divided  among  such  dependents  share 
and  share  alike ;  if  there  is  no  one  of  them  wholly 
dependent,  but  one  or  more  partly  dependent,  ten 
per  centum  divided  among  such  dependents  share 
and  share  alike. 

The  above  percentages  shall  be  paid  if  there  is 
no  widow,  widower,  child,  or  dependent  parent.  If 
there  is  a  widow,  widower,  child,  or  dependent 
parent,  there  shall  be  paid  so  much  of  the  above 
percentages  as,  when  added  to  the  total  percentage 
payable  to  the  widow,  widower,  children,  and 
dependent  parents,  will  not  exceed  a  total  of  sixty- 
six  and  two-thirds  per  centum. 

(G)  The  compensation  of  each  beneficiary  un- 
der clauses  (E)  and  (F)  shall  be  paid  for  a  period 
of  eight  years  from  the  time  of  the  death,  unless 
before  that  time  he,  if  a  parent  or  grandparent, 
dies,  marries,  or  ceases  to  be  dependent,  or,  if  a 
brother,  sister,  or  grandchild,   dies,  marries,  or 
reaches  the  age  of  eighteen,  or,  if  over  eighteen 
and  incapable  of  self-support,  becomes  capable  of 
self-support.    The  compensation  of  a  brother,  sis- 


FEDERAL  ACT  OF   1916  431 

ter,  or  grandchild  under  legal  age  shall  be  paid  to 
his  or  her  guardian. 

(H)  As  used  in  this  section,  the  term  "child" 
includes  stepchildren,  adopted  children,  and  post- 
humous children,  but  does  not  include  married 
children.  The  terms  "brother"  and  "sister"  in- 
clude stepbrothers  and  stepsisters,  half  brothers 
and  half  sisters,  and  brothers  and  sisters  by 
adoption,  but  do  not  include  married  brothers  or 
married  sisters.  All  of  the  above  terms  and  the 
term  "grandchild"  include  only  persons  who  at  the 
time  of  the  death  of  the  deceased  employee  are  un- 
der eighteen  years  of  age  or  over  that  age  and  in- 
capable of  self-support.  The  term  "parent"  in 
eludes  stepparents  and  parents  by  adoption.  The 
term  "widow"  includes  only  the  decedent's  wife 
living  with  or  dpendent  for  support  upon  him  at 
the  time  of  his  death.  The  term  "widower"  in- 
cludes only  the  decedent's  husband  dependent  for 
support  upon  her  at  the  time  of  her  death.  The 
terms  "adopted"  and  "adoption"  as  used  in  this 
clause  include  only  legal  adoption  prior  to  the 
time  of  the  injury. 

(I)  Upon  the  cessation  of  compensation  under 
this  section  to  or  on  account  of  any  person,  the 
compensation  of  the  remaining  persons  entitled  to 
compensation  for  the  unexpired  part  of  the  period 
during  which  their  compensation  is  payable  shall 
be  that  which  such  persons  would  have  received 
if  they  had  been  the  only  persons  entitled  to  com- 
pensation at  the  time  of  the  decedent's  death. 

(J)  In  case  there  are  two  or  more  classes  of 
persons  entitled  to  compensation  under  this  sec- 
tion and  the  apportionment  of  such  compensation, 
above  provided,  would  result  in  injustice,  the  com- 
mission may,  in  its  discretion,  modify  the  ap- 
portionment to  meet  the  requirements  of  the  case. 

(K)  In  computing  compensation  under  this 
section,  the  monthly  pay  shall  be  considered  not  to 
be  more  than  $100  nor  less  than  $50,  but  the  total 
monthly  compensation  shall  not  exceed  the  month- 
ly pay  computed  as  provided  in  §  12. 

(L)  If  any  person  entitled  to  compensation  un- 


432  MANUAL  OF  COMPENSATION  LAW 

der  this  section,  whose  compensation  by  the  terms 
of  this  section  ceases  upon  his  marriage,  accepts 
any  payments  of  compensation  after  his  marriage 
he  shall  be  punished  by  a  fine  of  not  more  than 
$2,000  or  by  imprisonment  for  not  more  than  one 
year,  or  by  both  such  fine  and  imprisonment. 

See  Chapter  VI  for  treatment  of  Dependency  under  the 
acts  generally. 

§  282.  Who  Is  the  Widow  of  An  Employee. 

Under  the  act  of  1908  it  was  decided  that  a  woman 
living  as  the  illegitimate  wife  of  an  employee  in  the  Canal 
Zone  does  not,  upon  his  death  become  his  widow. 

In  re  claim  of  Stanley  Howell,  May  8,  1909;  No.  851; 
Op.  Sol.  (1915)  549,  it  was  said: 

"From  the  papers  submitted  in  connection  with  the 
above  claim  it  appears  that  Stanley  Howell,  the  deceased, 
and  Irene  McKenzie  had  been  living  as  man  and  wife  for 
about  two  years  immediately  preceding  Howell's  death.  In 
June,  1908,  after  they  had  been  living  together  for  some 
time,  Howell  obtained  a  license  to  marry  the  McKenzie 
woman,  but  no  marriage  ceremony  was  ever  performed. 
While  they  were  living  together  they  had  one  child,  which 
died  shortly  after  birth,  and  the  woman  is  now  enciente. 

Two  claims  for  compensation  are  filed.  One  is  dated 
January  30,  1909,  and  is  made  by  Irene  McKenzie.  In  this 
claim  the  name  of  wife  is  given  as  'Irene  McKenzie  (il- 
legitimate).' The  blanks  for  names  of  children  and  par- 
ents are  not  filled  out,  and  the  claimant  certifies,  in  the 
printed  words  of  the  form,  that  she  knows  of  no  other  per- 
son entitled  to  compensation  on  account  of  the  death  of  the 
employee.  The  other  claim  is  dated  February  3,  1909, 
and  is  made  by  Edward  Davis  Howell,  father  of  deceased. 
This  claimant  in  like  manner  certifies  that  he  knows  of  no 
other  person  entitled  to  compensation. 

The  case  is  submitted  to  this  office  with  special  ref- 
erence to  the  question  whether  Irene  McKenzie  as  the 


FEDERAL  ACT  OF  1916  433 

widow  of  deceased  is  entitled  to  the  compensation  or  any 
part  thereof. 

The  status  of  the  parties  is  governed  by  the  law  of  their 
domicile.  The  Civil  Code  of  Panama  is  in  force  in  the  Ca- 
nal Zone.  Article  115  of  the  Code  provides: 

'A  marriage  contract  is  constituted  and  perfected  by  the 
free  and  mutual  consent  of  the  contracting  parties,  ex- 
pressed before  the  proper  official,  in  the  form  and  with  the 
formalities  and  requisites  established  in  this  Code,  and 
shall  not  produce  any  civil  or  political  effects,  if  such 
forms,  formalities,  and  requisites  are  not  observed  in  its 
celebration.' 

I  can  find  nothing  in  the  law  which  would  justify  the 
recognition  of  a  'common-law'  marriage  in  Panama.  Even 
if  such  a  marriage  could  be  recognized,  there  is  nothing 
in  the  record  which  shows  that  the  parties  regarded  them- 
selves as  husband  and  wife.  On  the  contrary,  the  deceased 
procured  a  license  to  marry  the  woman,  indicating  that  at 
that  time  he  did  not  regard  the  woman  as  his  lawful  wife, 
and,  as  the  license  was  never  utilized,  he  could  not  have 
so  regarded  her  at  the  time  of  his  death;  and  the  woman 
herself  describes  herself  as  an  illegitimate  wife.  Neither 
is  there  any  evidence  to  sustain  the  relations  of  the  man  and 
woman  as  a  putative  marriage.  Their  relations  must, 
therefore,  be  regarded  as  illegitimate,  and  being  such,  their 
posthumous  child,  should  there  be  one,  must  also  be  re- 
garded as  illegitimate,  for  the  Code  provides  that  legiti- 
mate children  are  those  conceived  during  the  real  or  puta- 
tive marriage  of  their  parents  (article  6  of  Law  57  of 
1887),  that  the  subsequent  marriage  of  the  parents  legiti- 
mates ipso  jure  the  children  conceived  before  and  born 
after  marriage,  except  if  the  subsequent  marriage  is  pre- 
sumed or  putative  (article  52  of  Law  153  of  1887). 

I  refer  to  the  law  in  regard  to  legitimate  children  for 
the  reason  that  although  the  child  is  not  yet  born,  the  Code 
provides  (article  93)  that — 

The  rights  which  would  be  deferred  to  a  child  in  the 


434  MANUAL  OF  COMPENSATION  LAW 

maternal  womb,  if  it  should  be  born  and  live,  shall  be  sus- 
pended until  the  birth  has  taken  place.  And  if  the  birth 
constitutes  a  beginning  of  existence,  the  new  born  shall 
enter  upon  the  enjoyment  of  said  rights,  as  if  he  had  ex- 
isted at  the  time  they  were  deferred.' 

I  am  of  opinion,  therefore,  that  Irene  McKenzie  is  not 
the  'widow'  of  the  deceased  (see  Bolton  v.  Bolton,  73  Me., 
299)  ;  that  her  claim  can  not  be  allowed;  and  that  the  claim 
filed  by  Edward  Davis  Howell  is  the  only  one  properly  be- 
fore the  Department. 

In  reference  to  this  latter  claim,  attention  is  called  to 
the  meagerness  of  the  information  on  which  to  base  a  judg- 
ment as  to  the  dependence  of  the  claimant.  It  is  stated 
that  he  customarily  received  $5  per  month  from  the  de- 
ceased. The  amount  customarily  received  is  only  one  of  the 
factors  from  which  to  judge  of  dependence.  The  Depart- 
ment should  be  advised  as  to  the  financial  condition  of  the 
parent,  his  earning  capacity,  etc. 

It  is  recommended,  therefore,  that  the  Isthmian  Canal 
Commission  be  requested  to  furnish  additional  informa- 
tion along  the  line  indicated." 

In  re  claim  of  Fitz  Agard,  Mar.  9,  1910 ;  No.  2957 ;  Op. 
Sol.  (1915)  550,  it  was  held  that  the  act  does  not  operate 
to  grant  compensation  to  a  woman  who  for  several  years 
lived  in  Barbados  and  as  the  "reputed  wife"  of  an  employee 
who  was  killed  in  the  Canal  Zone,  and  to  whom  she  had 
borne  three  illegitimate  children. 

In  re  claim  of  Edward  Niemeier  (alias  W.  J.  Niemeier). 
Oct.  3,  1911;  No.  7207;  Op.  Sol.  (1915)  551,  it  was  held 
that  a  woman  who  has  been  divorced  from  an  employee 
and  who  has  been  given  the  custody  of  his  children  is  not 
entitled  to  compensation  on  account  of  his  death,  though 
the  compensation  may  be  paid  to  her  as  guardian  for  the 
children.  The  solicitor  said: 

"This  claim  is  s'ubmitted  with  special  reference  to  the 
following  question:  Is  claimant  (a  'divorced  widow')  a 


FEDERAL  ACT  OF   1916  .  435 

widow  within  the  meaning  of  the  act?     (Attention  is  in- 
vited to  question  13  and  reply,  on  page  1  of  claim.) 

It  is  observed  from  the  affidavit  that  claim  is  made 
by  the  'divorced  widow'  in  her  own  behalf  as  well  as  in  be- 
half of  two  children  of  the  marriage  under  16  years  of  age. 
It  is  noted  from  the  record  that  in  granting  the  divorce  the 
court  awarded  the  custody  of  the  two  children  to  the 
mother.  A  woman  who  has  been  divorced  from  her  hus- 
band is  not  the  'widow'  of  the  latter  after  his  death'  (11 
Op.  At.  Gen. ;  30  Am.  &  E.  Ency.  Law,  521.)  The  divorcee 
in  the  present  case  therefore  would  not  be  entitled  to  the 
payment  of  any  part  of  the  compensation ;  and  as  there  are 
no  dependent  parents  whose  interests  should  be  considered, 
the  entire  amount  of  compensation  should  be  awarded  to 
the  two  children  and  should  be  paid  to  the  mother  as  their 
guardian  for  their  use  and  benefit." 

§  283.  "Child  or  Children"  Includes  "Illegitimate  Children." 

In  a  very  well  considered  opinion  in  re  claim  of  J.  Hard- 
ing, Jan.  17,  1910;  No.  2059;  Op.  Sol.  (1915)  562,  after 
discussing  the  cases  on  the  subject,  the  Solicitor  said : 

"Notwithstanding,  then,  the  generally  accepted  view, 
and  the  numerous  decisions  in  support  of  it,  referred  to 
at  the  outset,  it  is  believed  that  the  Secretary  would  be 
amply  justified  in  holding  that  the  children  of  a  deceased 
employee,  whether  legitimate  or  illegitimate,  at  least  if 
there  is  no  reason  to  question  the  relationship,  are  en- 
titled to  the  benefits  of  the  compensation  act.  This  would 
be  no  more  than  giving  to  the  word  'child'  its  natural  im- 
port. It  would  likewise  give  effect  to  the  tendency  no- 
ticeable in  modern  legislation,  toward  recognizing  in  il- 
legitimates the  same  claims  to  parental  care  and  support 
that  belong,  by  natural  right,  to  the  young  of  any  species. 
It  would  be  sustained,  moreover,  by  those  authorities  above 
cited,  few  in  number  but  none  the  less  persuasive,  which 
announce  what  seems  to  be  the  more  rational  doctrine; 
and  it  would  follow  a  principle  of  public  policy  which  does 
not  depend  for  its  sanction  upon  the  infliction  of  vicarious 


436  MANUAL  OF  COMPENSATION  LAW 

punishment  on  the  innocent  and  the  helpless.  On  the  other 
hand,  to  hold,  as  many  courts  have  done,  that  the  use  of 
the  word  'child'  in  a  statute,  without  any  qualification  in- 
dicating a  restricted  sense,  always  implies  the  issue  of  law- 
ful wedlock,  because  in  generations  past  the  law  regarded  a 
bastard  as  nullius  filius  and  heir  to  no  one,  is  to  adhere  to  a 
rule  long  after  the  reason,  for  it  has  ceased  to  have  point. 
Such  an  adherence  to  mere  technicality,  based  on  a  legal 
fiction  no  longer  operative,  would  be  still  less  reasonable 
when  dealing  with  a  statute  which,  like  the  compensation 
act,  is  intended  for  a  beneficial  purpose  and  is  expressly 
designed  to  relieve  ordinary  laborers  and  those  dependent 
on  them  of  the  necessity  of  bearing  the  whole  burden  re- 
sulting from  the  inevitable  accidents  incident  to  the  indus- 
try in  which  they  are  employed.  Without  saying  of  Con- 
gress what  the  court  in  Connecticut  said  of  the  legislature 
of  that  State,  that  it  is  'a  body  made  up  generally  of  plain 
men,'  it  can  be  said  that,  in  passing  the  compensation  act, 
'they  made  laws  for  plain  men ;'  and  it  is  at  least  fair  to  pre- 
sume that  they  used  the  terms  'child'  and  'children'  in  the 
statute  in  question  'in  their  common,  popular  signification, 
rather  than  with  reference  to  any  legal  or  technical  sense/ 
and  that  they  'had  as  little  reference  to  the  technical  mean- 
ing of  words  in  the  English  common  law  as  they  had  to 
the  English  law  of  inheritance.'  The  compensation  act 
does  not  in  any  way  touch  the  matter  of  inheritance. 

In  my  opinion,  therefore,  for  the  reasons  given,  and 
on  the  strength  of  some  of  the  authorities  cited,  the  word 
'child'  or  'children,'  within  the  meaning  of  the  compensa- 
tion act,  is  not  restricted  to  child  or  children  born  in  wed- 
lock, but  includes  illegitimate  offspring  as  well.  It  is  ac- 
cordingly recommended  that  the  claim  of  Edgar  McDon- 
ald Harding,  the  illegitimate  child  of  James  F.  Harding, 
deceased,  be  allowed." 

§  284.  Adopted  Child. 

In  re  claim  of  Asencion  Estorga,  Apr.  3,  1915 ;  Op.  Sol. 
(1915)  566,  it  was  said: 


FEDERAL  ACT  OF   1916  437 

"The  claim  is  submitted  with  the  inquiry  whether  an 
adopted  child  of  decedent  is  entitled  to  the  benefits  of  the 
act  of  May  30,  1908. 

The  record  discloses  the  fact  that  decedent  left  a  wid- 
ow and  a  child  under  16  years  of  age  which,  it  is  stated, 
was  adopted  five  years  ago,  and  a  claim  is  filed  by  the 
widow  on  behalf  of  herself  and  the  child.  There  is  nothing 
further  in  the  record  to  show  whether  the  child  was  leg- 
ally adopted  according  to  the  laws  of  the  domicile,  and,  on 
the  other  hand,  nothing  appears  to  dispute  this  fact.  It 
may  therefore  be  assumed  that  the  child  was  legally  adopt- 
ed. 

In  the  case  of  Juan  Rodriguez  (Bu.  No.  9441)  the  ques- 
tion arose  whether  the  father  of  an  adopted  son  was  a  de- 
pendent parent  within  the  meaning  of  the  act,  and  it  was 
held  in  an  opinion  by  the  Solicitor,  under  date  of  October 
12,  1912  (p.  551),  that  as  it  was  shown  that  the  child  was 
legally  adopted  in  accordance  with  the  practice  and  cus- 
tom of  the  country  of  domicile,  the  claimant,  the  adopting 
father,  stood  in  the  relationship  of  a  natural  parent  and 
was  therefore  entitled  to  the  compensation  as  a  dependent 
parent. 

That  being  true,  it  would  seem  that  a  child  should 
stand  in  the  same  position  after  being  legally  adopted  as 
it  would  generally  under  the  laws  of  most  jurisdictions  be- 
come an  heir  at  law  of  the  adopting  parent  or  parents. 

I  therefore  conclude,  considering  that  the  child  was 
lawfully  adopted  and  stands  in  the  relation  of  a  natural- 
born  child  of  the  decedent,  that  as  such  it  is  entitled  to  a 
portion  of  the  compensation  payments." 

§  285.  To  Whom  Compensation  of  Children  With  Surviving 
Parent  Is  Paid. 

Where  an  employee  dies,  leaving  no  parent  or  widow 
but  leaving  a  child  entitled  to  the  benefits  of  the  act,  and  the 
acting  Spanish  consul  files  an  affidavit  of  claim  on  behalf 
of  such  child,  such  acting  consul  may  be  regarded  as  acting 
in  loco  parentis  and  his  affidavit  as  the  affidavit  of  the 


438  MANUAL  OF  COMPENSATION  LAW 

child.    In  re  claim  of  J.  G.  Redondo,  May  2,  1910 ;  No.  3218 ; 
Op.  Sol.  (1915)  563. 

Where  on  account  of  the  death  of  an  employee  compen- 
sation has  been  allowed  to  the  widow  and  child  and  the 
widow  dies  within  the  compensation  period,  and  the  care 
of  the  child  devolves  upon  the  child's  maternal  grand- 
mother, the  remainder  of  the  year's  compensation  may  be 
paid  to  such  maternal  grandmother  for  the  use  and  bene- 
fit of  the  child.  In  re  claim  of  J.  E.  Jefferson,  Oct.  1,  1910 ; 
No.  2995;  Op.  Sol.  (1915)  564. 

§  286.  A  Foster  Parent  By  Legal  Adoption  May  Be  a  De- 
pendent Parent. 

In  re  claim  of  F.  J.  Huff,.  Nov.  24,  1908 ;  No.  160 ;  Op. 
Sol.  (1915)  567,  it  was  said: 

"Adoption,  like  marriage,  is  a  civil  contract,  and,  as 
a  general  rule,  following  the  opinion  in  the  William  A. 
Brinkley  case  under  this  act,  where  there  are  no  circum- 
stances which  may  raise  a  doubt  of  the  relationship,  where 
it  appears  that  the  deceased  has  lived  with  and  supported 
a  woman  who  claims  to  be  and  was  claimed  by  the  deceased 
to  have  been  the  mother  by  adoption  of  such  deceased,  and 
where  the  reporting  officer,  as  in  this  case,  states  that  such 
relationship  existed,  it  may  safely  be  assumed  that  the  re- 
lationship is  established. 

Upon  the  question  of  proving  dependence  of  the  par- 
ent upon  the  deceased  the  opinion  in  the  Brinkley  case  may 
again  safely  be  followed,  to  the  effect  that  a  statement  by 
the  claimant  is  sufficient  to  establish  such  dependency.  In 
this  case  claimant  states  that  she  necessarily  depended  up- 
on the  deceased,  customarily  receiving  $6  weekly  out  of 
his  salary  of  $1.75  a  day." 

In  re  claim  of  Charles  Perkins,  March  24,  1912;  No. 
8189;  Op.  Sol.  (1915)  579,  it  was  said: 

"This  case  is  submitted  with  the  following  inquiry: 
Whether  the  'foster  father'  of  the  decedent,  in  the  event 
that  he  can  establish  a  condition  of  dependency,  would  be 


FEDERAL  ACT  OF   1916  439 

entitled  to  compensation  as  a  'dependent  parent'  under  the 
act  of  May  30,  1908. 

This  question  is  raised  because  of  an  inquiry  submit- 
ted to  the  yard  officials,  asking  whether  a  foster  father, 
who  raised  the  decedent  from  his  eighth  year,  but  did  not 
adopt  him  legally,  was  entitled  to  compensation  under  the 
act  of  May  30,  1908. 

Thus  it  will  be  seen  that  while  the  foster  father  raised 
the  decedent,  still  he  never  went  through  the  formality  of 
adopting  him  under  the  laws  of  his  domicile,  consequently, 
the  relationship  of  parent  and  child  by  adoption  was  never 
consummated,  and  in  the  eyes  of  the  law  no  inheritable  re- 
lationship existed.  Under  the  provisions  of  the  above- 
mentioned  act  a  beneficiary  must  be  either  a  widow,  a 
child  or  children  under  16  years  of  age,  or  a  dependent 
parent." 

§  287.  Dependency  a  Question  of  Fact — Parents. 

In  re  claim  of  Theodore  Rock,  Mar.  24,  1909;  No.  516; 
Op.  Sol.  (1915)  573,  it  was  said: 

"A  person  is  dependent,  according  to  the  Standard 
Dictionary,  when  'needing  support  or  aid  from  outside 
sources;  poor;  weak;  as,  children  and  invalids  are  depend- 
ent;' and  a  dependent  is  defined  as  'one  who  looks  to  an- 
other for  support,  help,  or  favor.'  Speaking  of  the  Brit- 
ish workmen's  compensation  act,  it  has  been  said: 

'It  would  be  hopeless  to  attempt  to  lay  down  any  rule  of 
guidance,  because  every  case  would  probably  differ  in  some 
material  circumstance  from  almost  any  other.  Depend- 
ent probably  means  dependent  for  the  ordinary  necessaries 
of  life  for  a  person  of  that  class  or  position  in  life.  Thus 
the  financial  or  social  position  of  the  recipient  for  com- 
pensation would  have  to  be  taken  into  account.  That 
which  would  make  one  person  dependent  upon  another 
would  in  another  case  merely  cause  one  to  receive  benefit 
from  the  other.  Each  case  must  stand  or  its  own  merits 
and  be  decided  as  a  question  of  fact.'  (Minton-Senhouse 


440  MANUAL  OF  COMPENSATION  LAW 

Accidents  to  Workmen,  197;  Simmons  v.  White,  1  Q.  B. 
1899,  1907.) 

Referring  to  a  statute  providing  for  the  creation  of 
beneficial  assistance,  which  contemplated  the  payment  of 
benefits  to  'persons  dependent  upon'  a  deceased  member,  it 
has  been  held: 

Trivial  or  casual,  or  perhaps  wholly  charitable  assist- 
ance, would  not  create  a  relation  of  dependency  within 
the  meaning  of  the  statute  or  by-laws.  Something  more 
is  undoubtedly  required.  The  beneficiaries  must  be  de- 
pendent upon  the  member  in  a  material  degree  for  sup- 
port or  maintenance  or  assistance,  and  the  obligation  on 
the  part  of  the  member  to  furnish  it  must,  it  would  seem, 
rest  upon  some  moral  or  legal  or  equitable  ground,  and 
not  upon  the  purely  voluntary  or  charitable  impulses  or 
disposition  of  the  member/  (McCarthy  v.  Order  of  Pro- 
tection, 153  Mass.  318.) 

The  question  of  dependence  is  one  of  fact  and  not  of 
law  (Daly  v.  Steel  &  Iron  Co.,  155  Mass.,  5) ;  and  the  fact 
of  dependence  is  sufficiently  established  for  the  purposes 
of  an  employer's  liability  law  if  a  condition  of  only  partial 
dependence  for  the  necessaries  of  life  is  shown  (Mulhall  v. 
Fallon,  176  Mass.,  267).  Cunningham  v.  McGreggor  (38 
S.  L.  R.,  574)  involved  the  case  of  a  widow  who  had  lived 
with  her  children  separate  from  her  husband  for  three 
years  preceding  his  death.  His  contributions  to  the  support 
of  the  family  did  not  exceed  £5  a  year.  The  widow  ob- 
tained occasional  employment  and  her  relatives  assisted 
her.  One  of  her  children  earned  a  small  wage.  It  was 
held  that  she  was  wholly  dependent  upon  her  husband  (see 
also  Atlanta  Railroad,  etc.  v.  Gravitt,  26  L.  R.  A.  553). 

The  amount  contributed  by  the  deceased  to  the  sup- 
port of  his  parents  is  therefore  by  no  means  the  only  crite- 
rion for  determining  whether  such  parents  are  dependent ; 
although  the  facfe  that  the  deceased  had  contributed  would 
obviously  tend  to  establish  the  condition  of  dependence. 
The  fact  that  the  parents  have  a  natural  and  equitable,  if 


FEDERAL  ACT  OF   1916  441 

not  a  legal,  claim  upon  their  children  for  care  and  main- 
tenance makes  it  proper  to  consider  the  actual,  needs  of  the 
parents  in  any  given  case  in  this  respect,  regardless  of  how 
far  a  deceased  child  may  have  been  able  to  supply  those 
needs.  And  in  ascertaining  what  such  needs  are  it  is  plain- 
ly necessary  to  look  to  the  age,  the  circumstances,  the  po- 
sition in  life,  and  the  earning  capacity  of  such  parents. 
Thus,  under  section  4707  of  the  Revised  Statutes  of  the 
United  States,  which  provides  in  effect  that  if  a  soldier 
has  died,  entitled  to  a  pension,  and  leaves  neither  widow 
nor  minor  children,  his  mother,  father,  or  orphan  sisters 
or  brothers,  'if  dependent  on  him  at  the  time  of  his  death/ 
shall  be  entitled  to  the  pension,  it  was  held  that  a  mother 
is  dependent  upon  her  son  when  she  requires  for  her  sup- 
port the  use  of  a  farm  in  which  he  has  an  interest  as  an 
heir;  that  the  mother  would  be  entitled  to  support  accord- 
ing to  the  style  in  which  she  had  been  accustomed  to  live; 
and  that  though  the  mother,  a  widow,  had  some  money 
of  her  own  invested,  she  was  not  bound  to  use  the  capital 
for  her  support,  but  could  be  dependent  upon  the  son,  with- 
in the  meaning  of  the  statute,  and  still  keep  her  money 
at  interest,  using  the  income  for  her  support  as  far  as  it 
would  go. 

'If  that  use  of  the  farm  was  necessary  to  her  support, 
then  she  would  be,  at  least  in  part,  dependent  upon  that, 
and  that  dependence  would  be  recognized  by  permitting 
her  to  occupy  the  farm,  as  I  have  stated.  .  .  .  She  had 
the  right,  so  far  as  the  construction  of  this  statute  is  con- 
cerned, to  keep  that  money  at  interest,  depend  upon  the 
income  from  it,  and  treat  herself  as  dependent  upon  her 
sons  for  whatever  might  be  necessary  for  her  support  over 
and  above  that  income.  .  .  .  There  is  a  statement  here 
that  if  the  income  of  the  relative  claiming  to  be  dependent 
is  less  than  $500  per  year,  that  is  to  be  regarded  as  making 
him  or  her  dependent.  ...  In  the  opinion  of  the  court, 
it  depends  upon  the  circumstances  of  each  case.  The  mother 
is  entitled  to  support  according  to  the  style  in  which  she 


442  MANUAL  OF  COMPENSATION  LAW 

has  been  living.  If  that  has  been  humble  and  inexpensive, 
the  amount  necessary  to  provide  for  her  would  necessarily 
be  less  than  if  she  had  been  living  in  a  more  expensive 
style.  The  policy  of  the  Government  is  not  to  reduce  the 
surviving  relatives  of  the  soldier  who  has  lost  his  life  in  the 
service  down  to  the  lowest  standard  of  life,  but  it  is  to  con- 
strue the  dependent  clause,  so  far  as  the  obligation  of  the 
statute  is  concerned,  according  to  the  mode  in  which  the 
widow  had  been  living.  .  .  .  It  is  for  you  to  deter- 
mine according  to  the  testimony  whether  she  was  ade- 
quately provided  for,  and  in  determining  that  you  will  look 
to  what  is  necessary  for  her  support.'  (U.  S.  v.  Purdy, 
38  Fed.  Rep.  902.)" 

In  re  claim  G.  W.  Branch,  Mar.  18,  1910;  No.  2091; 
Op.  Sol.  (1915)  576,  the  Rock  case  (supra)  was  quoted  in 
part  and  the  Solicitor  said  further : 

"But  notwithstanding  these  considerations,  before  it 
can  be  held  that  a  given  claimant  is  a  'dependent  parent' 
within  the  meaning  of  the  act,  it  will  not  suffice  to  know 
merely  'the  age,  the  circumstance,  the  position  in  life,  and 
the  earning  capacity'  of  the  parent;  it  must  further  ap- 
pear that  the  parent  did  in  fact  depend  upon  the  deceased, 
in  whole  or  in  part,  for  a  means  of  living,  in  so  far  at  least 
that  by  reason  of  the  death  of  the  deceased  the  parent  was 
deprived  of  a  means  of  support  on  which  he  relied  and 
which  he  would  otherwise  receive.  If  it  is  shown  that  the 
parent  is  in  actual  need  of  assistance,  the  fact  of  depend- 
ence would  sufficiently  appear,  doubtless,  if  it  further  ap- 
peared that  the  deceased  had  attempted  to  supply  that  need, 
even  to  a  slight  extent,  or  that,  but  for  the  death  of  the  de- 
ceased, the  parent  was  reasonably  assured  that  such  need 
would  be  supplied  in  some  substantial  measure." 

Dependency  of  parents  was  held  established  in  the  fol- 
lowing cases :  Of  both  where  the  employee  contributed  $100 
in  two  years  and  five  months  prior  to  death;  In  re  claim 
Levi  Belgrave,  Nov.  20,  1909;  No.  2061;  Op.  Sol.  (1915) 
580;  of  the  mother  where  the  employee  contributed  $125 


FEDERAL  ACT  OF   1916  443 

to  his  mother  during  the  year  before  his  death  although 
the  father  owned  real  estate  and  had  an  income  of  $1,200. 
In  re  Leon  Esselman,  Mar.  25,  1910;  No.  2508;  Op.  Sol. 
(1915)  581. 

A  son  was  in  the  habit  of  sending  his  mother  in  Ire- 
land small  sums  of  money  about  May  and  Christmas  of 
each  year.  The  mother  was  a  pensioner  of  the  British 
Government  and  had  three  other  sons.  The  deceased  son 
left  a  widow.  Upon  this  state  of  facts  it  was  concluded 
that  the  mother  was  not  a  dependent  parent.  In  re  claim 
of  Frank  Duffy,  Sept.  5,  1913;  Op.  Sol.  (1915)  594. 

Where  decedent  contributed  large  sums  to  his  parents, 
he  being  single  and  the  parents  having  five  younger  chil- 
dren to  raise,  these  facts,  considering  the  financial  condi- 
tion of  the  parents,  were  held  to  constitute  a  dependency. 
In  re  claim  of  Jack  Scott,  Oct.  28,  1913;  Op.  Sol.  (1915) 
595. 

Decedent  left  a  widow  and  widowed  mother.  The  widow 
filed  claim,  but  died  before  it  was  approved.  The  mother 
joined  in  the  widow's  claim,  stating  that  she  was  not  de- 
pendent on  her  son.  Subsequently  to  widow's  death  the 
mother  filed  a  claim  setting  forth  her  financial  condition, 
that  she  was  61  years  of  age,  and  depended  upon  her  ef- 
forts for  support.  Held  that  although  the  son  had  not 
contributed,  yet  her  financial  and  physical  condition  ren- 
dered her  a  dependent  parent.  In  re  claim  of  William  F. 
Munn,  Nov.  25,  1913;  Op.  Sol.  (1915)  597. 

Decedent  was  20  years  of  age,  and  until  a  few  days 
previous  to  his  death  in  the  Government  employ  he  had 
worked  on  the  farm  of  his  parents.  He  had  promised  to 
contribute  from  his  Government  wages,  but  met  his  death 
before  receiving  any.  Held  that  parents  were  dependent, 
considering  all  the  facts  presented.  In  re  claim  of  Robert 
Harris,  Dec.  16,  1913;  Op.  Sol.  (1915)  598. 

Decedent  was  21  years  of  age.  The  parents  claimed 
that  the  son  had  contributed  a  certain  amount  during  a 
certain  period,  which  amount  was  in  excess  of  his  earnings. 


444  MANUAL  OF  COMPENSATION  LAW 

Considering  all  the  circumstances  of  the  case,  including 
age  and  financial  condition  of  the  parents,  it  was  held  that 
they  were  not  dependent  to  any  extent  upon  the  son,  the 
mere  fact  of  contribution  not  being  sufficient  of  itself  to 
establish  that  condition.  In  re  claim  of  William  Rees,  Aug. 
4,  1914;  Op.  Sol.  (1915)  599. 

The  deceased  employee  had,  previous  to  going  to  work 
for  the  Reclamation  Service,  assisted  his  parents  in  the  op- 
eration of  a  small  farm.  On  the  day  he  began  work  he  was 
killed.  Considering  the  age,  circumstances,  and  condition 
of  the  parents,  they  were  held  entitled  as  dependent  par- 
ents. In  re  claim  of  Juan  Encinas,  Nov.  16,  1914 ;  Op.  Sol. 
(1915)  601. 

Claim  was  filed  by  the  mother  on  account  of  death  of 
18-year-old  son.  As  she  was  unable  to  establish  the  fact 
of  contribution  by  the  son,  who  did  not  live  with  her,  it  was 
held  that  dependency  was  not  shown.  In  re  claim  of  Charles 
Jones,  Dec.  8,  1914;  Op.  Sol.  (1915)  602. 

See  further  Chapter  VI,  §  166. 

SECTION  11. 
Burial  Expenses. 

§  11.  That  if  death  results  from  the  injury 
within  six  years  the  United  States  shall  pay  to  the 
personal  representative  of  the  deceased  employee 
burial  expenses  not  to  exceed  $100,  in  the  dis- 
cretion of  the  commission.  In  the  case  of  an  em- 
ployee whose  home  is  within  the  United  States, 
if  his  death  occurs  away  from  his  home  office  or 
outside  of  the  United  States,  and  if  so  desired 
by  his  relatives,  the  body  shall,  in  the  discretion 
of  the  commission,  be  embalmed  and  transported 
in  a  hermetically  sealed  casket  to  the  home  of  the 
employee.  Such  burial  expenses  shall  not  be  paid 
and  such  transportation  shall  not  be  furnished 
where  the  death  takes  place  more  than  one  year 
after  the  cessation  of  disability  resulting  from 
such  injury,  or,  if  there  has  been  no  disability  pre- 
ceding death,  more  than  one  year  after  the  in- 
•  jury. 


FEDERAL  ACT  OF   1916  445 

See  Chapter  X,  §  249. 

SECTION  12. 
How  Monthly  Pay  Is  Computed. 

§  12.  That  in  computing  the  monthly  pay  the 
usual  practice  of  the  service  in  which  the  employee 
was  employed  shall  be  followed.  Subsistence  and 
the  value  of  quarters  furnished  an  employee  shall 
be  included  as  part  of  the  pay,  but  overtime  pay 
shall  not  be  taken  into  account. 

SECTION  13. 
How  Monthly  Wage  Earning  Capacity  Is  Computed. 

§  13.  That  in  the  determination  of  the  em- 
ployee's monthly  wage-earning  capacity  after  the 
beginning  of  partial  disability,  the  value  of  hous- 
ing, board,  lodging,  and  other  advantages  which 
are  received  from  his  employer  as  a  part  of  his  re- 
muneration and  which  can  be  estimated  in  money 
shall  be  taken  into  account. 

SECTION  14. 
Lump  Sum  Settlements. 

§  14.  That  in  cases  of  death  or  of  permanent 
total  or  permanent  partial  disability,  if  the  month- 
ly payment  to  the  beneficiary  is  less  than  $5  a 
month,  or  if  the  beneficiary  is  or  is  about  to  be- 
come a  non-resident  of  the  United  States,  or  if  the 
commission  determines  that  it  is  for  the  best  inter- 
ests of  the  beneficiary,  the  liability  of  the  United 
States  for  compensation  to  such  beneficiary  may 
be  discharged  by  the  payment  of  a  lump  sum  equal 
to  the  present  value  of  all  future  payments  of  com- 
pensation computed  at  four  per  centum  true  dis- 
count compounded  annually.  The  probability  of 
the  beneficiary's  death  before  the  expiration  of 
the  period  during  which  he  is  entitled  to  compen- 
sation shall  be  determined  according  to  the  Ameri- 
can Experience  Table  of  Mortality;  but  in  case  of 
compensation  to  the  widow  or  widower  of  the  de- 
ceased employee,  such  lump  sum  shall  not  exceed 


446  MANUAL  OF  COMPENSATION  LAW 

sixty  months'  compensation.  The  probability  of  the 
happening  of  any  other  contingency  affecting  the 
amount  or  duration  of  the  compensation  shall  be 
disregarded. 

See  Chapter  X,  §  239. 

SECTIONS  15-16-17. 
Written  Notices  of  Injury — When  and  How  to  be  Given. 

§  15.  That  every  employee  injured  in  the  per- 
formance of  his  duty,  or  some  one  on  his  behalf, 
shall,  within  forty-eight  hours  after  the  injury, 
give  written  notice  thereof  to  the  immediate  su- 
perior of  the  employee.  Such  notice  shall  be  given 
by  delivering  it  personally  or  by  depositing  it  prop- 
erly stamped  and  addressed  in  the  mail. 

§  16.  That  the  notice  shall  state  the  name  and 
address  of  the  employee,  the  year,  month,  day,  and 
hour  when  and  the  particular  locality  where  the 
injury  occurred,  and  the  cause  and  nature  of  the 
injury,  and  shall  be  signed  by  and  contain  the  ad- 
dress of  the  person  giving  the  notice. 

§  17.  That  unless  notice  is  given  within  the  , 
time  specified  or  unless  the  immediate  superior 
has  actual  knowledge  of  the  injury,  no  compensa- 
tion shall  be  allowed,  but  for  any  reasonable  cause 
shown,  the  commission  may  allow  compensation  if 
the  notice  is  filed  within  one  year  after  the  injury. 

See  Chapter  VIII  for  discussion  of  notices  under  the  acts 
generally. 

SECTIONS  18-19-20. 

Claims  for  Compensation,  When  and  How  Made. 
§  18.  That  no  compensation  under  this  Act 
shall  be  allowed  to  any  person,  except  as  provided 
in  §  38,  unless  he  or  some  one  on  his  behalf  shall, 
within  the  time  specified  in  §  20,  make  a  written 
claim  therefor.  Such  claim  shall  be  made  by  de- 
livering it  at  the  office  of  the  commission  or  to  any 
commissioner  or  to  any  person  whom  the  com- 
.  mission  may  by  regulation  designate,  or  by  de- 
positing it  in  the  mail  properly  stamped  and  ad- 


FEDERAL  ACT  OF   1916  447 

dressed  to  the  commission  or  to  any  person  whom 
the  commission  may  by  regulation  designate. 

§  19.  That  every  claim  shall  be  made  on  forms 
to  be  furnished  by  the  commission  and  shall  con- 
tain all  the  information  required  by  the  commis- 
sion. Each  claim  shall  be  sworn  to  by  the  person 
entitled  to  compensation  or  by  the  person  acting 
on  his  behalf,  and,  except  in  case  of  death,  shall  be 
accompanied  by  a  certificate  of  the  employee's 
physician  stating  the  nature  of  the  injury  and  the 
nature  and  probable  extent  of  the  disability.  For 
any  reasonable  cause  shown  the  commission  may 
waive  the  provisions  of  this  section. 

§  20.  That  all  original  claims  for  compensation 
for  disability  shall  be  made  within  sixty  days  after 
the  injury.  All  original  claims  for  compensation 
for  death  shall  be  made  within  one  year  after  the 
death.  For  any  reasonable  cause  shown  the  com- 
mission may  allow  original  claims  for  compensa- 
tion for  disability  to  be  made  at  any  time  within 
one  year. 

See  Chapter  VIII  for  treatment  of  claims  for  compensa- 
tion in  general. 

SECTIONS  21-22-23. 
Medical  Examinations  and  Fees. 

§  21.  That  after  the  injury  the  employee 
shall,  as  frequently  and  as  such  times  and  places 
as  may  be  reasonably  required,  submit  himself  to 
examination  by  a  medical  officer  of  the  United 
States  or  by  a  duly  qualified  physician  designated 
or  approved  by  the  commission.  The  employee 
may  have  a  duly  qualified  physician  designated 
and  paid  by -him  present  to  participate  in  such  ex- 
amination. For  all  examinations  after  the  first 
the  employee  shall,  in  the  discretion  of  the  com- 
mission, be  paid  his  reasonable  traveling  and  other 
expenses  and  loss  of  wages  incurred  in  order  to 
submit  to  such  examination.  If  the  employee  re- 
fuses to  submit  himself  for  or  in  any  way  ob- 
structs any  examination,  his  right  to  claim  com- 
pensation under  this  Act  shall  be  suspended  until 


448  MANUAL  OF  COMPENSATION  LAW 

such  refusal  or  obstruction  ceases.  No  compen- 
sation shall  be  payable  while  such  refusal  or  ob- 
struction continues,  and  the  period  of  such  refusal 
or  obstruction  shall  be  deducted  from  the  period 
for  which  compensation  is  payable  to  him. 

§  22.  That  in  case  of  any  disagreement  between 
the  physician  making  an  examination  on  the  part 
of  the  United  States  and  the  employee's  physician 
the  commission  shall  appoint  a  third  physician, 
duly  qualified,  who  shall  make  an  examination. 

§  23.  That  fees  for  examinations  made  on  the 
part  of  the  United  States  under  §§21  and  22  by 
physicians  who  are  not  already  in  the  service  of 
the  United  States  shall  be  fixed  by  the  commis- 
sion. Such  fees,  and  any  sum  payable  to  the  em- 
ployee under  §  21,  shall  be  paid  out  of  the  appro- 
priation for  the  work  of  the  commission. 

See  Chapter  VII  §§  192-196. 

SECTION  24. 

Immediate  Superior  to  Report  Injuries. 
§  24.  That  immediately  after  an  injury  to  an 
employee  resulting  in  his  death  or  in  his  probable 
disability,  his  immediate  superior  shall  make  a  re- 
port to  the  commission  containing  such  informa- 
tion as  the  commission  may  require,  and  shall 
thereafter  make  such  supplementary  reports  as  the 
commission  may  require. 

SECTION  25. 

Assignments  Void.    Compensation  Exempt. 

§  25.  That  any  assignment  of  a  claim  for  com- 
pensation under  this  Act  shall  be  void  and  all  com- 
pensation and  claims  therefor  shall  be  exempt 
from  all  claims  of  creditors. 

See  Chapter  X,  §§  253,  254. 

SECTIONS  26-27. 

Injuries  Caused  by  Third  Persons.    Procedure. 
§  26.     If  an  injury  or  death  for  which  compen- 


FEDERAL  ACT  OF  1916  449 

sation  is  payable  under  this  Act  is  caused  under 
circumstances  creating  a  legal  liability  upon  some 
person  other  than  the  United  States  to  pay  dam- 
ages therefor,  the  commission  may  require  the 
beneficiary  to  assign  to  the  United  States  any  right 
of  action  he  may  have  to  enforce  such  liability  of, 
such  other  person  or  any  right  which  he  may  have 
to  share  in  any  money  or  other  property  received 
in  satisfaction  of  such  liability  of  such  other  per- 
son, or  the  commission  may  require  said  bene- 
ficiary to  prosecute  said  action  in  his  own  name. 

If  the  beneficiary  shall  refuse  to  make  such 
assignment  or  to  prosecute  said  action  in  his  own 
name  when  required  by  the  commission,  he  shall 
not  be  entitled  to  any  compensation  under  this 
Act. 

The  cause  of  action  when  assigned  to  the  Uni- 
ted States  may  be  prosecuted  or  compromised  by 
the  commission,  and  if  the  commission  realizes  up- 
on such  cause  of  action,  it  shall  apply  the  money 
or  other  property  so  received  in  the  following  man- 
ner :  After  deducting  the  amount  of  any  compen- 
sation already  paid  to  the  beneficiary  and  the  ex- 
penses of  such  realization  or  collection,  which  sum 
shall  be  placed  to  the  credit  of  the  employees'  com- 
pensation fund,  the  surplus,  if  any,  shall  be  paid 
to  the  beneficiary  and  credited  upon  any  future 
payments  of  compensation  payable  to  him  on  ac- 
count of  the  same  injury. 

§  27.  That  if  an  injury  or  death  for  which 
compensation  is  payable  under  this  Act  is  caused 
under  circumstances  creating  a  legal  liability  in 
some  person  other  than  the  United  States  to  pay 
damages  therefor,  and  a  beneficiary  entitled  to 
compensation  from  the  United  States  for  such  in- 
jury or  death  receives,  as  a  result  of  a  suit  brought 
by  him  or  on  his  behalf,  or  as  a  result  of  a  settle- 
ment made  by  him  or  on  his  behalf,  any  money  or 
other  property  in  satisfaction  of  the  liability  of 
such  other  person,  such  beneficiary  shall,  after 
deducting  the  costs  of  suit  and  a  reasonable  at- 
torney's fee,  apply  the  money  or  other  property 
so  received  in  the  following  manner: 

(A)  If  his  compensation  has  been  paid  in  whole 


450  MANUAL  OF  COMPENSATION  LAW 

or  in  part,  he  shall  refund  to  the  United  States 
the  amount  of  compensation  which  has  been  paid 
by  the  United  States  and  credit  any  surplus  upon 
future  payments  of  compensation  payable  to  him 
on  account  of  the  same  injury.  Any  amount  so  re- 
funded to  the  United  States  shall  be  placed  to  the 
credit  of  the  employees  compensation  fund. 

(B)  If  no  compensation  has  been  paid  to  him 
by  the  United  States,  he  shall  credit  the  money  or 
other  property  so  received  upon  any  compensation 
payable  to  him  by  the  United  States  on  account  of 
the  same  injury. 

See  Chapter  X,  §§  245-248. 

SECTIONS  28-33. 

United  States  Employee's  Compensation  Commission 
Organization,  Powers. 

§  28.  That  a  commission  is  hereby  created,  to 
be  known  as  the  United  States  Employees'  Com- 
pensation Commission,  and  to  be  composed  of 
-three  commissioners  appointed  by  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate, 
one  of  whom  shall  be  designated  by  the  President 
as  chairman.  No  commissioner  shall  hold  any 
other  office  or  position  under  the  United  States. 
No  more  than  two  of  said  commissioners  shall  be 
members  of  the  same  political  party.  One  of  said 
commissioners  shall  be  appointed  for  a  ter,m  of 
two  years,  one  for  a  term  of  four  years,  and  one 
for  a  term  of  six  years,  and  at  the  expiration  of 
each  of  said  terms,  the  commissioner  then  ap- 
pointed shall  be  appointed  for  a  period  of  six 
years.  Each  commissioner  shall  receive  a  salary 
of  $4,000  a  year.  The  principal  office  of  said  com- 
mission shall  be  in  Washington,  District  of  Colum- 
bia, but  the  said  commission  is  authorized  to  per- 
form its  work  at  any  place  deemed  necessary  by 
said  commission,  subject  to  the  restrictions  and 
limitations  of  this  Act. 

§  28a.  Upon  the  organization  of  said  commis- 
sion and  notification  to  the  heads  of  all  executive 
departments  that  the  commission  is  ready  to  take 


FEDERAL  ACT  OF  1916  451 

up  the  work  devolved  upon  it  by  this  Act,  all  com- 
missions and  independent  bureaus,  by  or  in  which 
payments  for  compensation  are  now  provided,  to- 
gether with  the  adjustment  and  settlement  of  such 
claims,  shall  cease  and  determine,  and  such  execu- 
tive departments,"  commissions,  and  independent 
bureaus  shall  transfer  all  pending  claims  to  said 
commission  to  be  administered  by  it.  The  said 
commission  may  obtain,  in  all  cases,  in  addition  to 
the  reports  provided  in  section  twenty-four,  such 
information  and  such  reports  from  employees  of 
the  departments  as  may  be  agreed  upon  by  the 
commission  and  the  heads  of  the  respective  depart- 
ments. All  clerks  and  employees  now  exclusively 
engaged  in  carrying  on  said  work  in  the  various 
executive  departments,  commissions,  and  inde- 
pendent bureaus,  shall  be  transferred  to,  and  be- 
come employees  of,  the  commission  at  their  pres- 
ent grades  and  salaries. 

§  29.  That  the  commission,  or  any  commis- 
sioner by  authority  of  the  commission,  shall  have 
power  to  issue  subpoenas  for  and  compel  the  at- 
tendance of  witnesses  within  a  radius  of  one  hun- 
dred miles,  to  require  the  production  of  books, 
papers,  documents,  and  other  evidence,  to  admin- 
ister oaths,  and  to  examine  witnesses,  upon  any 
matter  within  the  jurisdiction  of  the  commission. 

§  30.  That  the  commission  shall  have  such 
assistants,  clerks,  and  other  employees  as  may  be 
from  time  to  time  provided  by  Congress.  They 
shall  be  appointed  from  lists  of  eligibles  to  be  sup- 
plied by  the  Civil  Service  Commission,  and  in  ac- 
cordance with  the  civil-service  law. 

§  31.  That  the  commission  shall  submit  an- 
nually to  the  Secretary  of  the  Treasury  estimates 
of  the  appropriations  necessary  for  the  work  of 
the  commission. 

§  32.  That  the  commission  is  authorized  to 
make  necessary  rules  and  regulations  for  the  en- 
forcement of  this  Act,  and  shall  decide  all  ques- 
tions arising  under  this  Act. 

§  33.  That  the  commission  shall  make  to  Con- 
gress at  the  beginning  of  each  regular  session  a 
report  of  its  work  for  the  preceding  fiscal  year,  in- 


452  MANUAL  OF  COMPENSATION  LAW 

eluding  a  detailed  statement  of  appropriations  and 
expenditures,  a  detailed  statement  showing  re- 
ceipts of  and  expenditures  from  the  employees' 
compensation  fund,  and  its  recommendations  for 
legislation. 

SECTION  34. 
Appropriation. 

§  34.  That  for  the  fiscal  year  ending  June 
thirtieth,  nineteen  hundred  and  seventeen,  there 
is  hereby  authorized  to  be  appropriated,  from  any 
money  in  the  Treasury  not  otherwise  appropri- 
ated, the  sum  of  $50,000  for  the  work  of  the  com- 
mission, including  salaries  of  the  commissioners 
and  of  such  assistants,  clerks,  and  other  employees 
as  the  commission  may  deem  necessary,  and  for 
traveling  expenses,  expenses  of  medical  examina- 
tions under  sections  ^twenty-one  and  twenty-two, 
reasonable  traveling  and  other  expenses  and  loss 
of  wages  payable  to  employees  under  section 
twenty-one,  rent  and  equipment  of  offices,  pur- 
chase of  books,  stationery,  and  other  supplies, 
printing  and  binding  to  be  done  at  the  Government 
Printing  Office,  and  other  necessary  expenses. 

SECTION  35. 

Employees'  Compensation  Fund. 

§  35.  That  there  is  hereby  authorized  to  be 
appropriated,  from  any  money  in  the  Treasury 
not  otherwise  appropriated,  the  sum  of  $500,000, 
to  be  set  aside  as  a  separate  fund  in  the  Treasury, 
to  be  known*  as  the  employees'  compensation  fund. 
To  this  fund  there  shall  be  added  such  sums  as 
Congress  may  from  time  to  time  appropriate  for 
the  purpose.  Such  fund,  including  all  additions 
that  may  be  made  to  it,  is  hereby  authorized  to  be 
permanently  appropriated  for  the  payment  of  the 
compensation  provided  by  this  Act,  including  the 
medical,  surgical,  and  hospital  services  and  sup- 
plies provided  by  section  nine,  and  the  transporta- 
tion and  burial  expenses  provided  by  sections  nine 
and  eleven.  The  commission  shall  submit  annually 
.  to  the  Secretary  of  the  Treasury  estimates  of  the 


FEDERAL  ACT  OF  1916  453 

appropriations  necessary  for  the  maintenance  of 
the  fund. 

SECTION  36. 

Commission  to  Award  or  Refuse  Compensation. 
§  36.  The  commission,  upon  consideration  of 
the  claim  presented  by  the  beneficiary,  and  the 
report  furnished  by  the  immediate  superior  and 
the  completion  of  such  investigation  as  it  may 
deem  necessary,  shall  determine  and  make  a  find- 
ing of  facts  thereon  and  make  an  award  for  or 
against  payment  of  the  compensation  provided  for 
in  this  Act.  Compensation  when  awarded  shall 
be  paid  from  the  employees'  compensation  fund. 

See  chapter  X,  §§  226-234. 

SECTION  37. 
Commission  May  Review  Previous  Orders  or  Awards. 

§  37.  That  if  the  original  claim  for  compen- 
sation has  been  made  within  the  time  specified  in 
section  twenty,  the  commission  may,  at  any  time, 
on  its  own  motion  or  on  application,  review  the 
award,  and,  in  accordance  with  the  facts  found  on 
such  review,  may  end,  diminish,  or  increase  the 
compensation  previously  awarded,  or,  if  compensa- 
tion has  been  refused  or  discontinued,  award  com- 
pensation. 

SECTION  38. 

Payments  Under  Mistake  of  Law  or  Fact  May  Be 
Recovered. 

§  38.  That  if  any  compensation  is  paid  under 
a  mistake  of  law  or  of  fact,  the  commission  shall 
immediately  cancel  any  award  under  which  such 
compensation  has  been  paid  and  shall  recover,  as 
far  as  practicable,  any  amount  which  has  been  so 
paid.  Any  amount  so  recovered  shall  be  placed 
to  the  credit  of  the  employees'  compensation  fund. 

SECTION  39. 

Penalty  for  False  Affidavit  or  Claim. 
§  39.     That  whoever  makes,  in  any  affidavit 
required  under  section  four  or  in  any  claim  for 
compensation,  any  statement,   knowing   it   to   be 


454  MANUAL  OF  COMPENSATION  LAW 

false,  shall  be  guilty  of  perjury  and  shall  be  pun- 
ished by  a  fine  of  not  more  than  $2,000,  or  by  im- 
prisonment for  not  more  than  one  year,  or  by 
both  such  fine  and  imprisonment. 

SECTION  40. 
Definitions. 

§  40.     That  wherever  used  in  this  Act — 

The  singular  includes  the  plural  and  the  mas- 
culine includes  the  feminine. 

The  term  "employee"  includes  all  civil  em- 
ployees of  the  United  States  and  of  the  Panama 
Railroad  Company. 

The  term  "commission"  shall  be  taken  to  refer 
to  the  United  States  Employees'  Compensation 
Commission  provided  for  in' section  twenty-eight. 

The  term  "physician"  includes  surgeons. 

The  term  "monthly  pay"  shall  be  taken  to  refer 
to  the  monthly  pay  at  the  time  of  the  injury. 

SECTION  41. 

Repealing  Clause — Provisos — Panama  Railroad- 
Releases. 

§  41.  That  all  Acts  or  parts  of  Acts  incon- 
sistent with  this  Act  are  hereby  repealed:  Pro- 
vided, however,  That  for  injuries  occurring  prior 
to  the  passage  of  this  Act  compensation  shall  be 
paid  under  the  law  in  force  at  the  time  of  the  pas- 
sage of  this  Act :  And  provided  further,  That  if  an 
injury  or  death  for  which  compensation  is  pay- 
able under  this  Act  is  caused  under  circumstances 
creating  a  legal  liability  in  the  Panama  Railroad 
Company  to  pay  damages  therefor  under  the  laws 
of  any  State,  Territory,  or  possession  of  the  United 
States  or  of  the  District  of  Columbia  or  of  any 
foreign  country,  no  compensation  shall  be  payable 
until  the  person  entitled  to  compensation  releases 
to  the  Panama  Railroad  Company  any  right  of  ac- 
tion which  he  may  have  to  enforce  such  liability 
of  the  Panama  Railroad  Company,  or  until  he  as- 
signs to  the  United  States  any  right  which  he  may 
have  to  share  in  any  money  or  other  property  re- 


FEDERAL  ACT  OF   1916  455 

ceived  in  satisfaction  of  such  liability  of  the  Pan- 
ama Railroad  Company. 

SECTION  42. 

Employees  of  Panama  Canal  and  Panama  Rail- 
road Co. 

§  42.  That  the  President  may,  from  time  to 
time,  transfer  the  administration  of  this  Act  so 
far  as  employees  of  the  Panama  Canal  and  of  the 
Panama  Railroad  Company  are  concerned  to  the 
governor  of  the  Panama  Canal,  and  so  far  as  em- 
ployees of  the  Alaskan  Engineering  Commission 
are  concerned  to  the  chairman  of  that  commission, 
in  which  cases  the  words  "commission"  and  "its" 
wherever  they  appear  in  this  Act  shall,  so  far  as 
necessary  to  give  effect  to  such  transfer,  be  read 
"governor  of  the  Panama  Canal"  or  "chairman  of 
the  Alaskan  Engineering  Commission,"  as  the  case 
may  be,  and  "his" ;  and  the  expenses  of  medical 
examinations  under  sections  twenty-one  and 
twenty-two,  and  the  reasonable  traveling  and  oth- 
er expenses  and  loss  of  wages  payable  to  employees 
under  section  twenty-one,  shall  be  paid  out  of  ap- 
propriations for  the  Panama  Canal  or  for  the 
Alaskan  Engineering  Commission  or  out  of  funds 
of  the  Panama  Railroad,  as  the  case  may  be,  in- 
stead of  out  of  the  appropriation  for  the  work  of 
the  commission. 

In  the  case  of  compensation  to  employees  of  the 
Panama  Canal  or  of  the  Panama  Railroad  Com- 
pany for  temporary  disability,  either  total  or  par- 
tial, the  President  may  authorize  the  governor  of 
the  Panama  Canal  to  waive,  at  his  discretion,  the 
making  of  the  claim  required  by  section  eighteen. 
In  the  case  of  alien  employees  of  the  Panama  Canal 
or  of  the  Panama  Railroad  Company,  or  of  any 
class  or  classes  of  them,  the  President  may  remove 
or  modify  the  minimum  limit  established  by  sec- 
tion six  on  the  monthly  compensation  for  disabil- 
ity and  the  minimum  limit  established  by  clause 
(K)  of  section  ten  on  the  monthly  pay  on  which 
death  compensation  is  to  be  computed.  The  Pres- 
ident may  authorize  the  governor  of  the  Panama 


456  MANUAL  OF  COMPENSATION  LAW 

Canal  and  the  chairman  of  the  Alaskan  Engineer- 
ing Commission  to  pay  the  compensation  provided 
by  this  Act,  including  the  medical,  surgical,  and 
hospital  services  and  supplies  provided  by  section 
nine  and  the  transportation  and  burial  expenses 
provided  by  sections  nine  and  eleven,  out  of  the 
appropriations  for  the  Panama  Canal  and  for  the 
Alaskan  Engineering  Commission,  such  appropri- 
ations to  be  reimbursed  for  such  payments  by  the 
transfer  of  funds  from  the  employees'  compensa- 
tion fund. 

Approved,  September  7,  1916. 


TABLE  OF  CASES 


A 

Page 

Ackerson  v.  Nat'l  Zinc  Co.,  153  Pac.  530,  96  Kan.  781 258,  260 

Adams  v.  Acme  White  Lead  &  Color  Works,  182  Mich.  157,  148 

N.  W.  485,  L.  R.  A.  1916A  282,  283,  6  N.  C.  C.  A.  482 73 

Adams  v.  Iten  Biscuit  Co.  (Okla.),  162  Pac.  398 335 

Adams  v.  Thompson,  5  B.  W.  C.  C.  19,  6  N.  C.  C.  A.  883  (note),  L. 

R.  A.  1916A  326  (note) 122 

Agard,  in  re  claim  of  Fitz,  Op.  Sol.  (1915)  550 434 

Agler  v.  Michigan  Agricultural  College,  181  Mich.  559,  148  N.  W. 

341,  5  N.  C.  C.  A.  897 16 

Aillo  v.  Milwaukee  Refrigerator  Transit  &  Car  Co.,  Rep.  Wis. 

Indus.  Comm.  1914-15,  page  18 115 

Aldrich  v.  Aldrich,  8  Mete.  102,  106 293 

Allen  v.  Millville,  87  N.  J.  Law  356,  95  All.  130,  1011,  9  N.  C.  C. 

A  749  250,  335 

Allen  v.  State,  160  N.  Y.  S.  85 16 

Alston,  Frank,  in  re  claim  of,  Op.  Sol.  1915)  417 419 

American  Accident  Company  of  Louisville  v.  Carson,  99  Ky.  445, 

36  S.  W.  169,  Thomas'  Kentucky  Words  and  Phrases  12 86 

American  Coal  Co.  v.  Allegheney  County  Commissioners,  128  Md. 

564,  98  Atl.  143 : 334 

American  Ice  Co.  v.  Fitzhugh  et  al.,  —  Md.  — ,  97  Atl.  999 276 

Anderson  v.  Baird  &  Co.,  Ltd.,  40  Sc.  L.  R.  263,  6  N.  C.  C.  A.  678 

(note) 237 

Anderson  v.  Darngavil  (1910),  S.  C.  456 144 

Andreini  v.  Cudahy  Packing  Co.  et  al.,  1  Cal.  Ind.  Ace.  Comm., 

Dec.  8,  6  N.  C.  C.  A.  390 80 

Andrew  v.  Farnworth  Industrial  Society,  2  K.  B.  32,  90  L.  T.  N. 

S.  611 110 

Andrewjwski  v.  Wolverine  Coal  Co.,  182  Mich.  298,  148  N.  W.  684, 

6  N.  C.  C.  A.  807 184,  186 

Anslow  v.  Cannock  Chase  Colliery  Co.,  1  K.  B.  352,  2  B.  W.  C.  C. 

261,  11  N.  C.  C.  A.  669  (note) 189 

Anslow  v.  Cannock-Chase  Colliery  Co.,  Ltd.,  2  B.  W.  C.  C.  365, 

6  N.  C.  C.  A.  809 183 

Anglo-Australian  Steam  Navigation  Co.  v.  Richards,  4  B.  W.  C. 

C.  247   .  .   278 


458  MANUAL  OF  COMPENSATION  LAW 

Page 

Arata,  C.  M.,  in  re  claim  of,  Op.  Sol.  (1915)  264 411 

Archibald  v.  Ott,  87  S.  E.  791 137 

Armistead,  G.  M.,  in  re  claim  of,  Op.  Sol.  (1915)  305 414 

Armour  &  Co.  v.  Ind.  Bd.  of  111.,  273  111.  590,  113  N.  E.  138 292 

Armstrong  v.  Ind.  Comm.  of  Wis.,  161  Wis.  530,  154  N.  W.  844 212 

Arnold  v.  Benjamin,  1  Cal.  Ind.  Ace.  Comm.  Bui.  (No.  22,  1914)  44, 

9  N.  C.  C.  A.  (note)  254 276 

Ashton  v.  Boston  &  Maine  R.  R.,  222  Mass.  65,  109  N.  E.  820,  L. 

R.  A.  1916B  1281,  12  N.  C.  C.  A.  837 46,  47 

Atkinson,  J.  B.,  in  re  claim  of,  Op.  Sol.  (1915)  235 409 

Atlanta  Railroad,  etc.,  v.  Gravitt,  26  L.  R.  A.  553. . 440 

Aylesworth  v.  Phoenix  Cheese  Co.,  155  N.  Y.  S.  916,  170  App. 

Div.  34   .  13 


B 

Bacema,  Nicolas,  in  re  claim  of,  Op.  Sol.  (1915)  420 420 

Bachtel  v.  Wilson,  204  U.  S.  36,  40,  51  L.  ed.  357,  359,  27  Sup.  Ct. 

Rep.  243  383 

Bailey  E.  E.,  in  re  claim  of,  Op.  Sol.  (1915)  297 414 

Bailey  v.  Kenworthy,  1  K.  B.  441  (Eng.),  1  B.  W.  C.  C.  351,  L.  .R. 

A.  1916A  153  (note),  11  N.  C.  C.  A.  793 191 

Bailey  v.  U.-S.  Fidelity  &  Guaranty  Co.,  99  Neb.  109,  155  N.  W.  237  303 
Baird  v.  Kane,  7  Sc.  Sess.  Cas.,  5th  Series,  461,  L.  R.  A.  1916A 

(note)  161 235 

Ball  v.  Hunt  &  Sons,  Ltd.,  28  T.  L.  R.  428,  5  B.  W.  C.  C.  459,  5  N. 

C.  C.  A.  862 178 

Baltimore  &  O.  R.  Co.  v.  Interstate  Commerce  Commission,  221 

U.  S.  612,  619,  55  L.  ed.  878,  883,  31  Sup.  Ct.  Rep.  621 347 

Bannister,  James  Co.  v.  Krieger,  84  N.  J.  Law  30,  85  Atl.  1027, 

rehearing  denied,  89  Atl.  923 168,  170 

Barbier  v.  Connolly,  113  U.  S.  27,  31,  28  L.  ed.  923,  924,  5  Sup.  Ct. 

Rep.  357  ,  375 

Barbour  Flax  Spinning  Co.  v.  Hagarty,  85  N.  J.  Law  407,  89  Atl. 

919,  4  N.  C.  C.  A.  586 159,  314 

Bargey  v.  Massaro  Macaroni  Co.,  155  N.  Y.  S.  1076 14 

Barry  v.  Bay  State  Ry.  Co.,  222  Mass.  366,  110  N.  E.  1031 296 

Bartonshill  Coal  Co.  v.  Reid  (1858),  3  Macq.  H.  L.  Cas.  266,  284, 

295,  4  Jur.  N.  S.  767,  6  Week.  Rep.  664,  19  Eng.  Rul.  Cas.  107.  .  345 

Bassett  v.  Graf  Elder  Co.,  1  Cal.  Ind.  Ace.  Comm.  Dec.  60 225 

Bateman,  Admx.,  v.  Carterville  &  Big  Muddy  Coal  Co.,  188  111. 

App.   357    44 


TABLE  OF  CASES  459 

Page 
Bateman  Mfg.  Co.  v.  Smith,  85  N.  J.  Law  409,  89  Atl.  979,  4  N.  C. 

C.   A.   588 153 

Batista  v.  West  Jersey  &  S.  R.  Co.,  88  Atl.  954,  4  N.  C.  C.  A.  781. ..  211 
Baur  v.  Court  of  Common  Pleas  in  and  for  Essex  Co.,  88  N.  J. 

Law  128,  95  Atl.  627 183,  333 

Baxter  v.  C.  &  N.  W.  Ry.  Co.,  104  Wis.  307,  331,  80  N.  W.  644 228 

Bayon  v.  Beckley,  89  Conn.  154,  93  Atl.  139,  8  N.  C.  C.  A.  588 7 

Beare  v.  Garrod,  8  B.  W.  C.  C.  474,  10  N.  C.  C.  A.  756  (Eng.) 77 

Belgrave,  Levi,  in  re  claim  of,  Op.  Sol.  (1915)  580 442 

Bell  v.  Haynes-Ionia  Co.  (Mich.),  158  N.  W.  179   80 

Bellamy  v.  Humphries  (Eng.),  6  B.  W.  C.  C.  53 122 

Benzel  v.  Grogan,  67  Wis.  147,  150,  29  N.  W.  895 35 

Bernard,  Emanual  L.,  in  re  claim  of,  Op.  Sol.  (1915)  323 416 

Bernard  v.  Michigan  United  Traction  Co.,  —  Mich.  — ,  154  N.  W. 

565  43 

Bett  v.  Hughes,  8  B.  W.  C.  C.  362 96 

Bevan  v.  Everglyn  Colliery  Co.,  1  K.  B.  63,  11  N.  C.  C.  A.  (note) 

674  189 

Birmingham  v.  Lehigh  &  Wilkes-Barre  Coal  Co.,  95  Atl.  242 173 

Black  v.  New  Zealand  Shipping  Co.  (Eng.),  W.  C.  &  Ins.  Rep.  480, 

6  B.  W.  C.  C.  720,  L.  R.  A.  1916A  (note)  36 86 

Blackford  v.  Green,  87  N.  J.  Law  359,  94  Atl.  401 315 

Blood  v.  Ind.  Ace.  Comm.  (Cal.  App.),  157  Pac.  1140 33 

Blovelt  v.  Sawyer,  20  Times  L.  R.  105 105 

Blynn  v.  City  of  Pontiac,  185  Mich.  35,  151  N.  W.  681,  8  N.  C.  C. 

.      A.  793    18,  19 

Board  of  Highway  Commissioners  v.  Bloomington,  253  111.  164 ....   329 

Bolton  v.  Bolton,  73  Me.  299 434 

Bomgardner  v.  Zilch,  3  Ohio  App.  181,  35  Ohio  Cir.  Ct.  R.  292 260 

Boody  v.  K.  &  C.  Mfg.  Co.,  77  N.  H.  208,  90  Atl.  859,  L.  R.  A.  1916A 

10,    Ann.    Gas.    1914D    1280 63 

Borgnis  v.  Falk  Co.,  147  Wis.  327,  37  L.  R.  A.  (N.  S.)  489,  133  N. 

W.  209,  3  N.  C.  C.  A.  649 48,  288,  336,  357 

Boston  v.  Turner,  201  Mass.  190,  196,  87  N.  E.  634 293 

Boyd  v.  Pratt  et  al.,  72  Wash.  306,  130  Pac.  371 204,  317 

Boyle  v.  Columbian  Fire  Proofing  Co.,  182  Mass.  93 420 

Boyne  v.  Riverside  Storage  &  Cartage  Co.,  181  Mich.  378,  148  N. 

W.  412,  5  N.  C.  C.  A.  837 69,  71 

Branch,  G.  W.,  in  re  claim  of,  Op.  Sol.  (1915)  576 442 

Brett  v.   State  Highway  Commission,  Cal.  Ind.  Ace.  Bd.,  1   Nat. 

Comp.  Journal  (July,  1914),  5  N.  C.  C.  A.  902 16 

Brightman,  in  re,  220  Mass.  17,  8  N.  C.  C.  A.  102 76 


460  MANUAL  OF  COMPENSATION  LAW 

Page 
Broghi  v.  Hammond  Lumber  Co.,  1   Cal.   Ind.  Ace.   Comm.   Dec. 

(No.  8,  1914) 239 

Brooklyn  Mining  Co.  et  al.  v.  Industrial  Ace.  Comm.,  —  Cal.  — , 

159  Pac.  162   '. 267 

Brown,  William  P.,  in  re  claim  of,  Op.  Sol.  (1915)  328 416 

Brown  v.  Lochgelly  Iron  &  Coal  Co.,  Ltd.  (1907),  S.  C.  198,  44  S. 

L.  R.  180,  14  S.  L.  T.  545 252 

Brown  v.  S.  E.  &  C.  Ry.  Co.'s  Managing  Committee,  3  B.  W.  C. 

C.  428   313 

Bruno  v.  International  Coal  &  Coke  Co.  (Alberta),  7  B.  W.  C.  C. 

1033,  L.  R.  A.  1916A  (note)   87 258 

Bryant  v.  Fissell,  84  N.  J.  L.  72,  86  Atl.  458,  3  N.  C.  C.  A.  585, 

63,  87,  92,  93 

Bucher  v.  Wis.  Cent.  R.  Co.,  139  Wis.  597,  120  N.  W.  518 228 

Buckley's  Case,  218  Mass.  354,  105  N.  E.  979,  5  N.  C.  C.  A.  613 288 

Burbage  v.  Lee,  87  N.  J.  Law  36,  93  Atl.  859 160 

Burn's  Case,  218  Mass.  8,  105  N.  E.  601,  5  N.  C.  C.  A.  635 71 

Burns,  in  re  (Mass.),  105  N.  E.  601,  5  N.  C.  C.  A.  635 265 

Butt  v.  Gellyceidrim  Colliery  Co.,  3  B.  W.  C.  C.  44,  L.  R.  A.  1916A 

(note)    88    71,  258 

Byrne,  re  (1910  Prob.),  44  Ir.  Law  Times  98,  3  B.  W.  C.  C.  591 7 

Bystrom  Bros.  v.  Jacobson,  155  N.  W.  919,  162  Wis.  180 145 

G 

Cain  v.  Nat.  Zinc  Co.,  94  Kan.  679,  146  Pac.  1165,  rehearing  denied, 

148  Pac.  251 288 

Caliendo's  Case,  219  Mass.  498,  107  N.  E.  370 198 

Cardiff  Corporation  v.  Hall,  80  L.  J.  K.  B.  644;   (1911)  1  K.  B.  1009.  278 

Cardot  v.  Barney,  63  N.  Y.  281,  287,  20  Am.  Rep.  533 351 

Carinduff  v.  Gilmore,  48  Ir.  Law  Times  137,  7  B.  W.  C.  C.  981 ....  104 

Carpenter  v.  Detroit  Forging  Co.  (Mich.),  157  N.  W.  374 296 

Carrol  v.  What  Cheer  Stables  Co.,  96  A.  208  (R.  I.) 70 

Carroll  v.  Boston  Elevated  Railway,  200  Mass.  527 197 

Carroll  v.   Knickerbocker  Ice   Co.,   169  App.   Div.   450,   155   N.   Y. 

Supp.  1,  reversed  in  218  N.  Y.  435,  113  N.  E.  507. 291 

Carstens  v.  Pillsbury  et  al.,  158  Pac.  218  (Cal.) 24 

Carter  v.  Lang,  45  Scot  L.  R.  938,  1  B.  W.  C.  C.  379,  L.  R.  A.  1916A 

(note)  154,  11  N.  C.  C.  A.  (note)  795 190 

Chambers,  Joseph,  in  re  claim  of,  Op.  Sol.  (1915)  291 414 

Chapell  v.  412  Broadway  Co.,  155  N.  Y.  Supp.  858 14 

Charlotte,  C.  &  A.  R.  Co.  v.  Gibbes,  142  U.  S.  386,  394,  395,  35  L. 

•  ed.  1051,  1054,  1055,  12  Sup.  Ct.  Rep.  255..                                   .  382 


TABLE   OF   CASES  461 

Page 
Chicago  &  A.  R.  Co.  v.  Tranbarger,  238  U.  S.  67,  76,  59  L.  ed.  1204, 

1210,  35  Sup.  Ct.  Rep.  678 344 

Chicago,  B.  &  Q.  R.  Co.  v.  Harrington,  241  U.  S.  177,  180,  60  L. 

ed.  941,  942,  36  Sup.  Ct.  Rep.  517,  11  N.  C.  C.  A.  992 338,  385 

Chicago,  B.  &  Q.  R.  Co.  v.  McGuire,  219  U.  S.  549,  571,  55  L.  ed. 

328,  340,  31  Sup.  Ct.  Rep.  259 353 

Chicago,  I.  &  L.  R.  Co.  v.  Hackett,  228  U.  S.  559,  57  L.  ed.  966,  33 

Sup.  Ct.  Rep.  581 347 

Chicago,  R.  I.  &  P.  R.  Co.  v.  Zernecke,  183  U.  S.  582,  586,  46  L.  ed. 

339,  340,  22  Sup.  Ct.  Rep.  229 351 

Cincinnati  v.  Louisville  &  N.  R.  Co.,  223  U.  S.  390,  401,  56  L.  ed. 

481,  484,  32  Sup.  Ct.  Rep.  267 362 

City  of  Milwaukee  v.  Althoff,  156  Wis.  68,  145  N.  W.  238,  L.  R.  A. 

1916A  327  ! 97 

City  of  Milwaukee  v.  Industrial  Commission,  160  Wis.  238,  151  N. 

W.  247,  8  N.  C.  C.  A.  1076 258,  287 

City  of  Milwaukee  v.  Miller  et  al.,  154  Wis.  652,  144  N.  W.  188,  L. 

R.  A.  1916A  1,  Ann.  Cas.  1915B  847,  4  N.  C.  C.  A.  149 

222,  228,  231,  232,  236 

City  of  Milwaukee  v.  Ritzow,  158  Wis.  376,  149  N.  W.  480,  7  N.  C. 

C.  A.  498 154,  199 

City  of  Northfield  v.  Dist.  Court  of  Rice  Co.  —  Minn.  — ",  155  N.  W. 

103,  11  N.  C.  C.  A.  366 33 

City  of  Superior  v.  Industrial  Commission  et  al.,  160  Wis.  541, 

8  N.  C.  C.  A.  960 17 

Clark  v.  Clark,  155  N.  W.  507  (Mich.) 127 

Clark  v.  George  Taylor  &  Co.  (Eng.)  2  Sc.  L.  T.  145,  11  N.  C.  C.  A. 

54  153 

Clark,  A.  E.,  in  re  claim  of,  Op.  Sol.  (1915)  49 401 

Clark,  A.  E.,  in  re  claim  of,  27  Op.  At.  Gen.  346,  Op.  Sol.  Dep. 

Labor  (1915)  200  404 

Clark,  Basil  E.,  in  re  claim  of,  Op.  Sol.  (1915)  270 411 

Clark  v.  Los  Angeles  Co.,  1  Cal.  Ind.  Ace.  Comm.  Dec.  (No.  24, 

1914)  62,  9  N.  C.  C.  A.  88 182 

Clayton  v.  Dobbs,  2  B.  W.  C.  C.  488 215,  313 

Clayton  v.  Hardwick  Colliery  Co.  (1914),  W.  C.  &  Ins.  Rep.  343, 

8  N.  C.  C.  A.  (note)  287 108 

Clem  v.  Chalmers  Motor  Co.  et  al.,  178  Mich.  340,  144  N.  W.  848, 

4  N.  C.  C.  A.  876,  L.  R.  A.  1916A  352 102 

Clements  v.  Columbus  Saw  Mill  Co.,  Ohio  Ind.  Comm.  No.  101, 

Oct.  21,  1914,  6  N.  C.  C.  A.  (note)  959 28 

Clements,  E.  B.,  in  re  claim  of,  Op.  Sol.  (1915)  228 409 


462  MANUAL  OF  COMPENSATION  LAW 

Page 
Cline  v.  Studebaker  Corp'n.,  155  N.  W.  519,  L.  R.  A.  1916,  C.  1139 

(Mich.)  138,  174 

Clover,  Clayton  &  Co.,  Ltd.,  v.  Hughes  (1910),  A.  C.  242;  3  B.  W. 

C.  C.  275 75,  77,  129 

Cogdon  v.  Sunderland  Gas  Co.,  1  B.  W.  C.  C.  156,  L.  R.  A.  1916A 

(note),  318  112 

Cole  v.  Evans,  Son,  Lescher  and  Webb,  Ltd.,  4  B.  W.  C.  C.  138..  107 

Cole  v.  Hall,  103  111.  30 382 

Coleman  v.  Bartholomew  —  App.  Div.  — ,  161  N.  Y.  Supp.  560 36 

Collins  v.  Brooklyn  Union  Gas  Co.,  171  App.  Div.  381,  155  N.  Y. 

Supp.  957  292 

Collins  v.  Cole,  99  Atl.  830  (R.  I.)  276 

Coltman  v.  Morrison  &  Mason,  Ltd.,  W.  C.  &  Ins.  Rep.  43 249 

Connor,  S.  J.,  in  re  claim  of,  Op.  Sol.  (1915)  330 417 

Cook  v.  Dodge,  6  La.  Ann.  276 33 

Cook  v.  Manver's  Main  Colleries,  7  B.  W.  C.  C.  696 112 

Coppage  v.  Kansas,  236  U.  S.  1,  14,  59  L.  ed.  441,  446,  L.  R.  A. 

1915C  960,  35  Sup.  Ct.  Rep.  240 352 

Cordoza  v.  Pillsbury,  145  Pac.  1015 283 

Cormo  v.  Boston  Bridge  Works,  205  Mass.  366,  91  N.  E.  313 332 

Corral  v.  Hamlyn  &  Son,  94  Atl.  877  (R.  I.) 291 

Cory  v.  France,  F.  &  Co.,  1  K.  B.  114  (Eng.),  L.  R.  A.  1916A  (note) 

362  '. 309 

Costello  v.  Taylor,  111  N.  E.  755,  217  N.  Y.  179 13 

Coulthard  v.  Consett  Iron  Co.  (Eng.)  2  K.  B.  869 212 

Courter  v.  Simpson  Construction  Co.,  264  111.  488,  106  N.  E.  350,  6 

N.  C.  C.  A.  548 334 

Coyle  v.  Smith,  221  U.  S.  559,  567,  570,  55 'L.  ed.  853,  858,  859,  31 

Sup.  Ct.  Rep.  688 362 

Craft  v.  State,  3  Kan.  451 , 319 

Crawford,  Joseph  W.,  in  re  claim  of,  Op.  Sol.  (1915)  56 403 

Cremin  v.  Mordicai,  155  N.  Y.  Supp.  859 14 

Cripps'  Case,  216  Mass.  586,  104  N.  E.  565,  Ann.  Cas.  1915B  828, 

296,  311 

Crockett  v.  State  Insurance  Fund,  170  App.  Div.  122,  155  N.  Y. 

Supp.  692  306 

Crooks  v.  Tazewell  Coal  Co.,  263  111.  343,  105  N.  E.  132,  Ann.  Cas. 

1915C  304,  5  N.  C.  C.  A.  410 333,  357 

Crowley  v.  City  of  Lowell,  223  Mass.  288,  111  N.  E.  786 70,  288 

Crucible  Steel  Forge  Co.  v.  Moir,  219  F.  151,  135  C.  C.  A.  49 46 

Cunningham  v.  Buffalo  Copper  &  Brass  Rolling  Mills,  155  N.  Y. 

Supp.  797  298 

Cunningham  v.  McGreggor,  38  S.  L.  R.,  574 440 


TABLE   OF  CASES  463 

Page 
Cunningham  v.  McNaughten  &  Sinclair  (1910),  S.  C.  980,  3  B.  W. 

C.  C.  577 144 

Cunningham  v.  N.  W.  Improvement  Ass'n.,  44  Mont.  180,  119  Pac. 

554,  1  N.  C.  C.  A.  720 334 

Cutoria  v.  Swieberg,  9  N.  C.  C.  A.  1125 251 

Czuprinski  v.  Mechanical  Mfg.  Co.,  111.  Ind.  Bd.  Nov.  23,  1914,  6 

N.   C.   C.   A.   889. .  .   176 


D 

Dale,  James,  in  re  claim  of,  Oct.  5,  1910;  Op.  Sol.  (1915)  437 422 

437  422 

Daly  v.  Steel  &  Iron  Co.,  155  Mass.,  5  440 

Dane  County  v.  Industrial  Comm.  of  Wis.,  9  N.  C.  C.  A.  906 304 

Daniels  v.  New  York,  N.  H.  &  H.  R.  Co.,  183  Mass.  393,  62  L.  R. 

A.  751,  67  N.  E.  424 Ill 

Darlington  v.  Rossae  &  Sons,  1  K.  B.  219 203 

Davies  v.  Gillespie,  28  T.  L.  R.  6,  56  Sol.  J.  11,  5  B.  W.  C.  C.  64 115 

David  v.  Windsor  Steam  Coal  Co.,  Ltd.,  4  B.  W.  C.  C.  177,  6  N.  C. 

C.  A.  679  (note) 238 

Davis  v.  N.  Y.  &  N.  E.  R.  R.,  143  Mass.  301,  9  N.  E.  815,  58  Am. 

Rep.  138 332 

Dazy  v.  Apponang  Co.,  36  R.  I.  81,  89  Atl.  160,  4  N.  C.  C.s  A.  594,  L. 

R.  A.  1916A  (note),  250 194,  199 

De  Biasi  v.  Normandy  Water  Co.,  228  Fed.  234 211 

De  Constantine  etc.  v.  Public  Service  Commission  of  the  State  of 

W.  Va.,  75,  W.  Va.  32,  83  S.  E.  88,  L.  R.  A.  1916A  329 96,  98 

Deem  v.  Kalamazoo  Paper  Co.  (Mich.),  155  N.  W.  584 288 

Deeny  v.  Wright  &  Cobb  Litherage  Co.,  36  N.  J.  L.  J.  121,  7  N.  C. 

C.  A.,  note  144 325,  32*5 

De  Fazio  v.  Goldschmidt  Detinning  Co.  (N.  J.  Supp.),  88  Atl.  705,  4 

N.  C.  C.  A.  716,  L.  R.  A.  1916A  40,  231 88 

De  Fazio's  Estate  v.  Goldschmidt  Detinning  Co.,  95  A.  549,  affirm- 
ing, 88  Atl.  705,  4  N.  C.  C.  A.  716 133 

De  Filippis  v.  Falkenberg,  170  App.  Div.  153,  155  N.  Y.  Supp.  761 

107,  112 

De  Francesco  v.  Pinney  Mining  Co.,  86  S.  E.  777  (West  Va.),  10 

N.  C.  C,  A.  1015 47,  336 

Deibeikis  v.  Link  Belt.  Co.,  261  111.  454,  101  N.  E.  211,  Ann.  Cas. 

1915A  241,  5  N.  C.  C.  A.  401 333,  357 

Delaware,  L.  &  W.  R.  Co.  v.  Yurkonis,  238  U.  S.  439,  59  L.  ed.  1397, 

35  Sup.  Ct.  Rep.  902 ..  385 


464  MANUAL  OF  COMPENSATION  LAW 

Page 
Delia  Rocca  v.  Stanley  Jones  &  Co.  (Eng.),  1914  W.  C.  &  Ins.  Rep. 

34,  6  N.  C.  C.  A.  624,  7  B.  W.  C.  C.  101 242 

Devine  v.  Delano,  272  111.  166,  111  N.  E.  742 334 

Devine,  Edward,  in  re  claim  of,  Op.  Sol.  (1915)  277 412 

Devney  v.  City  of  Boston,  £20  Mass.  270,  111  N.  E.  788 199 

De  Voe  v.  New  York  State  Rys.,  218  N.  Y.  318,  113  N.  E.  256,  af- 
firming 169  App.  Div.  472,  155  N.  Y.  Supp.  12 95,  99 

De  Zang  Standard  Co.  v.  Pressey,  86  N.  J.  Law  469,  92  Atl  278.  .159,  314 

Dickens  v.  Carr,  84  Mo.  658 56 

Dietz  v.  Big  Muddy  Coal  &  Iron  Co.,  263  111.  480,  5  N.  C.  C.  A.  419 

43,  333 

Dillard  v.  Webb,  55  Ala.  474 35 

Doherty,  in  re,  222  Mass.  98,  109  N.  E.  887 138 

Donlon  Bros.  Ind.  Ace.  Comm.  (Cal.),,159  Pac.  715 24 

Donnelly  v.  Baird  Co.,  Ltd.,  1  B.  W.  C.  C.  95,  6  N.  C.  C.  A.  678 

(note)  237 

Donovan  v.  Cameron,  Swan  &  Co.,  2  Ir.  R.  633 203 

Dorrance  v.  New  England  Pin  Co.,  Conn.  Super  Ct.,  1  Nat.,  Comp. 

Journ.  (July,  1914)  23,  6  N.  C.  C.  A.  709 114 

Dothie  v.  MacAndrew  &  Co.,  1  K.  B.  803,  L.  R.  A.  1916A  (note) 

160  182 

Dowds  v.  Bennie  (1903),  5  F  268 144 

Dowds  v.  John  Bennie  &  Sons,  40  Sc.  L.  R.  239,  6  N.  C.  C.  A.  679 

(note)  238 

Doyle  v.  Cork  Steam  Packet  Co.,  5  B.  W.  C.  C.  350 315 

Dragovich  v.  Iroquois  Iron  Co.,  269  111.  478,  109  N.  E.  999,  10  N.  C. 

C.  A.  475 122,  139,  331 

Duffy,  Frank,  in  re  claim  of,  Op.  Sol.  (1915)  594 443 

Dunham  v.  Clare,  2  K.  B.  292,  4  W.  C.  C.  102 295 

Duprey  v.  Maryland  Casualty  Co.,  219  Mass.  189,  106  N.  E.  686 

148,  153,  297 

Dyer  v.  James  Black  Masonry  &  Contracting  Co.,  158  N.  W.  959 

(Mich.)    : 24,   26,   29 

E 

Eagle  Chemical  Co.  v.  Novak,  161  Wis.  446,  154  N.  W.  631 289 

Earnshaw  v.  Lancashire  &  Y.  R.  Co.,  5  W.  C.  C.  28 104 

Eaves  v.  Blaenclydach  Colliery  Co.,  Ltd.,  2  B.  W.  C.  C.  329.  2  K. 

B.  73  84,  144 

Edmonds,  Edward,  in  re  claim  of,  Op.  Sol.  (1915)  259 410 

Edwardsen  v.  Jarvis  Lighterage  Co.,  160  App.  Div.  368,  153  N.  Y. 

Supp.    391    ...  326 


TABLE   OF   CASES  465 

Page 

Eke  v.  Hart-Dyke,  2  K.  B.  677,  3  N.  C.  C.  A.  230 72,  255 

Elmore,  Washington,  in  re  claim  of,  Op.  Sol.  (1915)  245 410 

El  Paso  &  N.  E.  R.  Co.  v.  Gutierrez,  215  U.  S.  87,  97,  54  L.  ed.  106, 

111,  30  Sup.  Ct.  Rep.  21 347 

Encinas,  Juan,  in  re  claim  of,  Op.  Sol.  (1915)  601 444 

Employers'  Assur.  Corp.  v.  Industrial  Ace.  Comm.,  170  Cal.  800, 

151  Pac.  423 290 

Englebretsen  v.  Ind.  Ace.  Comm.,  170  Cal.  793,  151  Pac.  421,  10  N. 

C.  C.  A.  545  139,  289,  291,  333 

Enman  v.  Dalziel,  50  Scot.  L.  R.  143,  6  B.  W.  C.  C.  900 71 

Erie  R.  Co.  v.  Williams,  233  U.  S.  685,  699,  58  L.  ed  1155,  1160,  51 

L.  R.  A.  (N.  S.)  1097,  34  Sup.  Ct.  Rep.  761 375 

Esselman,  Leon,  in  re,  Op  Sol.  (1915)  581 443 

Estorga,  Ascension,  in  re  claim  of,  Op.  Sol.  (1915)  566 436 

Evanhoff  v.  State  Ind.  Ace.  Comm.,  78  Ore.  503,  154  Pac.  106 335 

Eydman  v.  Premier  Accum.  Co.,  Ltd.,  W.  C.  Ins.  Rep.  82 249 

F 

Fitzpatrick,  C.  C.,  in  re  claim  of,  Op.  Sol.  (1915)  306 414 

Fleet  v.  Johnson  (Eng.),  6  B.  W.  C.  C.  60 71 

Flemmings,  Cornelius,  in  re  claim  of,  Op.  Sol.  (1915)  225 413 

Floccher  v.  Fidelity  &  Deposit  Co.  of  Md.,  221  Mass.  54,  108  N.  E. 

1032  165,  239 

Flood  v.  Smith  &  Leishman,  1  Scot.  L.  T.  340,  9  N.  C.  C.  A.  1027. .  252 

Flora,  C.  B.,  in  re  claim  of,  Op.  Sol.  (1915)  226 409 

Flyn  v.  Burgess  (Eng.),  W.  C.  &  Ins.  Rep.  238 314 

Ford  v.  Gaiety  Theater,  Ltd.,  7  B.  W.  C.  C.  197,  9  N.  C.  C.  A.  967. .  256 

Forde,  Joseph,  in  re  claim  of,  Op.  Sol.  (1915)  309 415 

Forrest  v.  Roper  Furniture  Co.,  267  111.  331,  108  N.  E.  328 322 

Fortino  v.  .Merchants  Despatch  Transp.  Co.,  156  N.  Y.  S.  262 168 

Foth  v.  Macomber  &  Whyte  Rope  Co.,  161  Wis.  549,  154  N.  W.  369, 

11  N.  C.  C.  A.  599 56 

Frank  v.  Mangum,  237  U.  S.  309,  340,  59  L.  ed.  960,  985,  35  Sup.  Ct. 

Rep.  582 .' 354,  361 

Frates,  W.  S.,  in  re  claim  of,  Op.  Sol.  (1915)  510 425 

Fredenburg  v.  Empire  United  R.  Co.,  168  App.  Div.  618,  154  N.  Y. 

Supp.  351  161 

Frey  v.  Kerens-Donnewald  Coal  Co.,  110  N.  E.  824,  271  111.  121 70 

Friscia  v.  Drake  Bros.  Co.,  153  N.  Y.  Supp.  392,  167  App.  Div. 

496 , .  205 

Frith  v.  The  Louisiana,  5  B.  W.  C.  C.  410 272 

Furness  v.  Bennett  (1910),  3  B.  W.  C.  C.  195 143 


466  MANUAL  OF  COMPENSATION  LAW 

Page 

Fahey,  William  P.,  in  re  claim  of,  Op.  Sol.  (1915)  283 413 

Farrish  v.  Nugent,  1  Cal.  Ind.  -Ace.  Comm.  98,  11  N.  C.  C.  A.  179 . .  76 
Farwell  v.  Boston  &  W.  R.  Corp.,  4  Met.  49,  57,  38  Am.  Dec.  339, 

15  Am.  Neg.  Cas.  407 345 

Favro,  Admr.  v.  Superior  Coal  Co.,  188  111.  App.  203 42 

Favro  v.  Board  of  Public  Library  Trustee,  1  Cal.  Ind.  Ace.  Comm. 

Dec.  (No.  15)  1 87 

Federal  Rubber  Mfg.  Co.  v.  Havolic,  156  N.  W.  143,  162  Wis.  341  13S 
Feinman  v.  Albert  Mfg.  Co.,  155  N.  Y.  Supp.  909,  170  App.  Div. 

147  166 

Feldman  v.  Braunstein  (N.  J.)  93  Atl.  679 176 

Fensler  v.  Associated  Supply  Co.,  1  Cal.  Ind.  Ace.  Comm.  Dec. 

447  113 

Fenton  v.  Thornely  &  Co.,  App.  Cas.  443,  19  T.  L.  R.  684,  5  W.  C. 

C.  1  75,  87 

Fergus  v.  Russell,  270  111.  304,  110  N.  E.  130,  Ann.  Cas.  1916B 

1120  334 

Fidelity  &  Deposit  Co.  of  Maryland  v.  Industrial  Ace.  Comm.,  171 

Cal.  728,  154  Pac.  834 267,  268 

Field  v.  Longden  &  Sons,  1  K.  B.  47,  4  W.  C.  C.  20 286 

Finn  v.  Detroit  Mt.  C.  &  M.  City  Ry.,  155  N.  W.  721  (Mich) 212 

Finnic  v.  Duncan,  7  Sc.  Sess.  Cas.,  5th  Series,  254,  L.  R.  A.  1916A 

161 235 

First  National  Bank  of  Milwaukee  v  Ind.  Comm.,  361  Wis.  526,  154 

N.  W.  847 289,  291,  292,  318 

Fischer,  in  re,  220  Mass.  581,  108  N.  E.  361,  8  N..C.  C.  A.  1071.  .137,  288 
Fitzgerald  v.  W.  G.  Clarke  &  Son  (1908)  2  K.  B.  796,  77  L.  J.  K.  B. 

N.  S.  1018,  99  L.  T.  N.  S.  101,  1  B.  W.  C.  C.  197.. 91,  93,  101,  107 
Fitzgerald  v.  Lozier  Motor  Co.,  187  Mich.  660,  154  N.  W.  67 137,  291 


G 

Galveston,  H.  &  S.  A.  R.  Co.  v.  Texas,  210  U.  S.  217,  227,  52  L.  ed. 

1031,  1037,  28   Sup.  Ct.  Rep.   638 374 

Garcia  v.  Ind.  Ace.  Comm.,  171  Cal.  57,  151  Pac.  741 196 

Gardelle  v.  Hampton  Co.,  153  N.  Y.  S.  162,  167  App.  Div.  617 13 

Gardener  v.  Horseheads  Const.  Co.,  171  App.  Div.  66,  156  N.  Y.  S. 

899     289 

Garrett-Callahan  Co.  v.  Industrial  Ace.  Comm.,  171  Cal.  334,  153 

Pac.    239 226 

Gates  v.  Cottonseed  Products  Co.  and  Millers'   Mutual   Casualty 
Co.,  Ky.  Workmen's  Comp.  Bd.  Dec.  Mar.  6,  1917..  268 


TABLE  OF  CASES  467 

Page 
Gaynor,  Admrx.,  etc.  v.  Standard  Accident  Insurance  Co.,  217  Mass. 

86,  104  N.  E.  339,  L.  R.  A.  1916A  363,  4  N.  C.  C.  A.  502 27,  32 

Geneva  Cooperage  Co.  et  al.  v.  Brown,  30  Ky.  L.  R.  272,  98  S.  W. 

279  259 

Gerow, 'William,  in  re  claim  of,  Op.  Sol.  (1915)  282 413 

Gerthung  v.  Stambaugh-Thompson  Co.,  1  Ohio  App.  176,  34  O.  Cir. 

Ctr.  385 47 

Gibson  v.  Torbett,  115  la.  163 421 

Gignac  v.  Studebaker  Corp.,  186  Mich.  576,  152  N.  W.  1037,  L.  R. 

A.  1916A  (note)  243 266 

Gilbert  Co.  v.  Fairweather,  1  B.  W.  C.  C.  349,  6  N.  C.  C.  A.  678 

(note)  2.17 

Gilkey,  Joseph,  in  re  claim  of,  Op.  Sol.  (1915)  288 414 

Gillen  v.  Ocean  Ace.  &  Guar.  Corp'n,  Ltd.,  215  Mass.  96,  102  N. 

E.  346,  L.  R.  A.  1916A  371 148,  186 

Gilroy  v.  Mackie,  46  Scot.  L.  R.  325,  L.  R.  A.  1916A  374 182 

Gilson,  Thomas  J.,  in  re  claim  of,  Op.  Sol.  (1915)  326 416 

Giovanni,  Pinna,  in  re  claim  of,  Op.  Sol.  (1915)  287 413 

Gleason  v.  Smith,  172  Mass.  50 46 

Gleisner  v.  Gross  &  Harbener,  170  App.  Div.  37,  155  N.  Y.  Supp. 

946  11,  13,  292 

Gloyd,  Mary  A.,  in  re  claim  of,  Vol.  1,  No.  7,  Bui.  Ohio,  Indus. 

Com.  79 212 

Goldstein  v.  Center  Iron  Works,  167  App.  Div.  526,  153  N.  Y.  Supp. 

224  283 

Gonzales,  Ramon  Z.,  in  re  claim  of,  Op.  Sol.  (1915)  333 417 

Gooding  v.  Ott,  (West  Va.)  87  S.  E.  863 326 

Gordan  v.  Evans,  1  Cal.  Ind.  Ace.  Comm.  Dec  94 147 

Gordon  v.  Evans,  1  Cal.  Ind.  Ace.  Comm.  Dec.  (No.  14,  1914), 

12  238 

Gorrell  v.  Battelle,  93  Kan.  370,  144  Pac.  244 147,  148 

Gough  v.  Crawshay  Bros.,  1  K.  B.  441,  1  B.  W.  C.  C.  374,  L.  R.  A. 

1916A  374  182 

Gould's  Case,  215  Mass.  480,  102  N.  E.  693,  Ann.  Cas.  1914D  372, 

4  N.  C.  C.  A.  60 325 

Gove  v.  Royal  Indemnity  Co.,  223  Mass.  187,  111  N.  E.  702 196 

Grand  Rapids  Lumber  Co.  v.  Blair,  (Mich.)  157  N.  W.  29 334 

Grant  v.  Conroy,  6  W.  C.  C.  153 300 

Great  Western  Power  Co.  v.  Pillsbury,  171,  Cal.  79,  151  Pac.  1136, 

L.  R.  A.  1916A  281,  11  N.  C.  C.  A.  493 67,  70 

Great  Western  Power  Co.  v.  Pillsbury,  170  Cal.  180,  149  Pac.  35, 

9  N.  C.  C.  A.  466 266,  333 

Green  v.  Appleton  Woolen  Mills,  162  Wis.  145,  155  N.  W.  958 44 


468  MANUAL  OF  COMPENSATION  LAW 

Page 

Green,  L.  B.,  in  re  claim  of,  Op.  Sol.  (1915)  237 409 

Green  v.  Shaw,  5  B.  W.  C.  C.  573 95 

Greene  v.  Caldwell,  170  Ky.  571,  186  S.  W.  648.  .48,  56,  262,  283,  334,  357 

Gregutis  v.  Waclark  Wire  Works,  91  Atl.  98  (N.  J.) 214 

Griffiths  v.  Gilbertsens  &  Co.,  Ltd.,  8  B.  W.  C.  C.  548,  11  N:  C. 

C.  A.  673 190 

Grime  v.  Fletcher,  8  B.  W.  C.  C.  69,  L.  R.  A.  1916A  (note),  339..  112 
Grogan  v.  Frankfort  General  Ins.  Co.,  Massachusetts  Industrial 

Accident  Board,  6  N.  C.  C.  A.  961 29 

Guerin,  M.,  in  re  claim  of,  Op.  Sol.  (1915)  324 416 

Guerrieri  v.  Ind.  Ins.  Comrn.,  146  Pac.  608 14 

Gundling  v.  Chicago,  177  U.  S.  183,  189,  44  L.  ed.  725,  729,  20  Sup. 

Ct.  Rep.  633 ..: .374 


H 

Haines  v.  Corbet,  5  B.  W.  C.  C.  372,  L.  R.  A.  1916A  (note)  374 181 

Haley  v.  Hardenberg  Miss.  Co.,  1  Cal.  Ind.  Ace.  Comm.  Dec.  (No. 

8,  1914^  127,  6  N.  C.  C.  A.  682  (note) 238 

Hall  v.  Smith,  2  Bing.  156,  160,  130  Eng.  Reprint.  265,  9  J.  B. 

Moore  226,  2  L.  J.  C.  P.  113 351 

Hammill  v.  Pennsylvania  R.  Co.,  87  N.  J.  L.  388,  94  Atl.  313 38 

Hanson,  John,  in  re  claim  of,  Op.  Sol.  (1915)  51 402 

Harding,  J.,  in  re  claim  of,  Op.  Sol.  (1915)  562 435 

Harpstead  v.  Alexander,  5  N.  C.  C.  A.  861 178 

Harris  v.  Hobart  Iron  Co.,  127  Minn.  399,  149  N.  W.  662 44 

Harris,  Robert,  in  re  claim  of,  Op.  Sol.  (1915)  598 443 

Kartell  v.  T.  H.  Simonson  &  Son  Co.,  218  N.  Y.  345,  113  N.  E. 

255  24 

Hartnett  v.  Steen,  169  App.  Div.  905,  153  N.  Y.  Supp.  1119,  af- 
firmed 216  N.  Y.  101,  110  N.  E.  170 85 

Hastorf  v.  Hudson  River  Stone  Supply  Co.,  110  Fed.  669 421 

Havey  v.  Erie  R.  R.  Co.,  95  Atl.  124,  37.  N.  J.  L.  444 10,  196 

Havis  v.  Cudahy  Ref.  Co.,  95  Kan.  505,  148  Pac.  626 43 

Hawkes  v.  Richard  Coles  &  Sons,  3  B.  W.  C.  C.  163,  6  N.  C.  C.  A. 

678  (note)  238 

Hawkins  v.  Bleakley,  220  Fed.  378,  —  U.  S.  — ,  37  Sup.  Ct.  Rep. 

255 48,  334,  356 

Hawley  v.  Am.  Mut.  Lia.  Ins.  Co.  (Mass.),  1  Nat.  Comp.  Journ. 

(Nov.  1914)  20,  8  N.  C.  C.  A.  (note)  285 108 

Hayward  v.  West  Leigh  Colliery,  Ltd.  (1915),  A.  C.  540,  W.  C. 

&  Ins.  Rep.  233,  9  N.  C.  C.  A.  966 255 

Heileman  Brewing  Co..  v.  Shaw,  154  N.  W.  631,  161  Wis.  433 140 


TABLE  OF  CASES  469 

Page 
Heileman  Brewing  Co.  v.  Schultz,  161  Wis.  46,  152  N.  W.  446.. 70,  83 

Henderson  v.  Wickham,  92  U.  S.  259,  268,  23  L.  ed.  543,  547 374 

Hendrick  v.  Maryland,  235  U.  S.  610,  622,  59  L.  ed.  385,  390,  35  Sup. 

Ct.  Rep.  140 359,  382 

Hendricks  v.  Seeman  Bros.,  170  App.  Div.  133,  155  N.  Y.  Supp. 

638 126,  196,  199 

Hendrickson  v.  Public  Service  Railway  Co.,  94  Atl.  402,  87  N. 

J.  L.  366 • 259 

Herkey  v.  Agar  Mfg.  Co.,  90  Misc.  457,  153,  N.  Y.  Supp.  369.. 56,  335 
Herrick's  Case,  217  Mass.  Ill,  104  N.  E.  432,  4  N.  C.  C.  A.  554..  198 

Hewitt,  Elizabeth,  in  re  claim  of,  Op.  Sol.  (1915)  248 410 

Hewlett  v.  Hepburn,  16  Times  L.  R.  56  (Eng.),  11  N.  C.  C.  A. 

(note)  798  190 

Hewitt  v.  Stanley  Bros.,  Ltd.,  W.  C..  &  Ins.  Rep.  495  (Eng.) 249 

Hetzel  v.  Watson  Piston  Ring  Co.  (N.  J.),  98  Atl.  306 56 

Hicks,  Richard,  in  re  claim  of,  Op  Sol.  (1915)  217 408 

Hill  v.  Begg,  2  K.  B.  802,  99  L.  T.  Rep.  104,  24  T.  L.  Rep.  711,  77  L. 

J.  K.  B.  1074,  1  B.  W.  C.  C.  320,  4  N.  C.  C.  A.  502 30,  32 

Hill  v.  Fuller  &  Co.,  1  Cal.  Ind.  Ace.  Comm.  Dec.  155 212 

Hillestad,  et  ux.,  v.  Industrial  Insurance  Commission  of  Washing- 
ton, 141  Pac.  913,  6  N.  C.  C.  A.  763 10 

Hills  v.  Blair,  182  Mich.  20,  148  N.  W.  243,  7  N.  C.  C.  A.  409 

92,  97,  103,  138 

Hirschkorn  v.  Fiege  Desk  Co.,  184  Mich.  239,  150  N.  W.  851 173 

Hodgson  v.  West  Stanley  Colliery  (1910)  A.  C.  229 209 

Hoenig  v.  Industrial  Commission,  159  Wis.  646,  150  N.  W.  996, 

L.  R.  A.  1916A,  339,  8  N.  C.  C.  A.  192 92,  109 

Hoey  v.  Superior  Laundry  Co.,  85  N.  J.  Law  119,  88  Atl.  823 58 

Holden  v.  Hardy,  169  U.  S.  366,  397,  42  L.  ed.  780,  793,  18  Sup.  Ct. 

Rep.  383  353 

Holden,  Walter  E.,  in  re  claim  of,  Op.  Sol.  (1915)  268 411 

Hoist  v.  Roe,  39  Ohio  St.  340,  344,  48  Am.  Rep.  459 382 

Hood  &  Sons  v.  Maryland  Casualty  Co.,  206  Mass.  223,  92  N.  E. 

329,  30  L.  R.  A.  (N.  S.),  1192,  138  Am.  St.  Rep.  379 74 

Hopkins  v.  Michigan  Sugar  Co.,  184  Mich.  87,  150  N.  W.  325,  L. 

R.  A.  1916A  310  90,  94 

Horsfall  v.  The  Jura,  6  B.  W.  C.  C.  213 272 

Hosegood  &  Sons  v.  Wilson  (Eng.),  4  B.  W.  C.  C.  30 314 

Hotel  Bond  Co.'s  Appeal,  89  Conn.  143,  93  Atl.  245,  8  N.  C.  C.  A. 

1068  48,  283,  288 

Hott,  C.  E.,  in  re  claim  of,  Op.  Sol.  (1915)  302 414 

House,  Bennie,  in  re  claim  of,  Op.  Sol.  (1915)  325 416 


470  MANUAL  OF  COMPENSATION  LAW 

Page 
Howard  v.  Republic  Theater,  2  Cal.  Ind.  Ace.  Comm.,  Dec.  (1915), 

514  23 

Howard  v.  Rowsell,  7  B.  W.  C.  C.  552,  L.  R.  A.  1916A  (note)  87.  .  258 

Howell,  Stanley,  in  re  claim  of,  Op.  Sol.  (1915)  549 432 

Howells  v.  Vivian  &  Sons,  4  W.  C.  C.  106,  85  L.  T.  529 194,  195 

Huff,  F.  J.,  in  re  claim  of,  Op.  Sol.  (1915)  567 438 

Hughes  v.  Degen  Belting  Co.,  1  Cal.  Ind.  Ace.  Com.  Dec.  203 231 

Hulley  v.  Moosbrugger,  87  N.  J.  L.  103,  93  Atl. '79,  L.  R.  A.  1916C 

1203,  8  N.  C.  C.  A.  283 106,  107,  290 

Hunt,  Grandville,  in  re  claim  of,  Op.  Sol.  (1915)  413 419 

Hunter  v.  Colfax  Consol  Coal  Co.,  —  Iowa,  — ,  L.  R.  A.  — ,  — ,  154 

N.  W.  1037,  157  N.  W.  145,  11  N.  C.  C.  A.  886 47,  261,  334,  357 

Humber  Towing  Co.,  Ltd.,  v.  Barclay,  5  B.  W.  C.  C.  142 242 

Hutchinson  v.  York,  N.  &  B.  R.  Co.,  (1850)  L.  R.  5  Exch.  343,  351, 

19  L.  J.  Exch.  N.  S.  296,  299,  14  Jur.  837,  840,  6  Eng  Ry.  &  C. 

Gas.  580 345 

Hurtado  v.  California,  110  U.  S.  516,  532,  28  L.  ed.  232,  237,  4  Sup. 

Ct.  Rep.  Ill,  292.  v 344 

Huyett  v.  Pa.  R.  Co.,  86  N.  J.  Law  683,  92  Atl.  58 335 

I 

lanzewski  v.  Central  Locomotive  &  Car  Works,  111.  Ind.  Bd.,  May 

1,  1914  .  . . ; 238 

Ing.  v.  Higgs,  7  B.  W.  C.  C.  65,  9  N.  C.  C.  A.  973 257 

Industrial  Ace.  Comm.  v.  Brown,  110  N.  E.  744,  92  Ohio  State 

309,  L.  R.  A.  1916B  1277 70 

International  Harvester  Co.  v.  Industrial  Comm.  157  Wis.  167,  147 

N.  W.  53,  Ann.  Gas.  1916B  330,  5  N.  C.  C.  A.  822 174,  288 

Irving,  J.  B.  in  re  claim  of,  Op.  Sol.  (1915)  249 410 

Ismay,  Imrie  &  Co.  v.  Williamson,  1  B.  W.  C.  C.  232,  6  N.  C.  C.  A. 

714  (note)  115 

Ives  v.  South  Buffalo  R.  Co.,  201  N.  Y.  271,  94  N.  E.  431,  34  L.  R. 

A.  (N.  S.)  162,  Ann.  Gas.  1912B  156,  1  N.  C.  C.  A.  517.  .48,  335,  341 

J 

Jackson,  Edgar,  in  re  claim  of,  Op.  Sol.  (1915)  320 415 

Jackson  v.  Vickers,  5  B.  W.  C.  C.  432,  L.  R.  A.  1916A  (note)  85 

248,  249 

Jacowicz  v..  Delaware,  L.  &  W.  Ry.  Co.,  87  N.  J.  L.  273,  92  Atl.  946, 

Ann.  Gas.  1916B  1222 298 

Janies  v.  Ocean  Coal  Co.,  2  K.  B.  213,  11  N.  C.  C.  A.  (note)  675..  189 


TABLE   OF   CASES  471 

Page 

Jarvis,  Philip,  in  re  claim  of,  Op.  Sol.  (1915)  219 409 

Jefferson,  J.  E.,  in  re  claim  of,  Op.  Sol.  (1915)  564 438 

Jeffrey  Mfg.  Co.  v.  Blagg,  90  Ohio  St.  376,  108  N.  E.  465,  affirmed 

235  U.  S.  571,  59  L.  ed.  364,  35  Sup%Ct.  Rep.  167,  7  N.  C.  C.  A. 

570  48,  335,  343,  357,  359,  370 

Jendrus  v  Detroit  Steel  Products  Co.  et  al.,  178  Mich.  265,  144  N. 

W.  563,  4  N.  C.  C.  A.  864,  L.  R.  A.  1916A  381,  Ann.  Cas.  1915D. . 

476  ' 87,  240 

Jenkins  v.  Carman  Mfg.  Co.  (Ore.)  155  Pac.  703,  11  N.  C.  C.  A. 

547  '.318 

Jenkins,  Samuel,  in  re  claim  of,  Op.  Sol.  (1915)  334 '. 417 

Jenson  v.  Southern  Pac.  Co.,  215  N.  Y.  514,  109  N.  E.  600,  L.  R..  A. 

1916A  403,  Ann.  Cas.  1916B  276,  9  N.  C.  C.  A.  286 335,  342 

Jillson  v.  Ross,  (R.  I.)  94  Atl.  717 138 

Jule,  Willard  E.,  in  re  claim  of,  Op.  Sol.  (1915)  261 411 

Jones,  Charles,  in  re  claim  of>  Op.  Sol.  (1915)  602 444 

Jones,  Elizabeth,  in  re,  Vol.  1,  No.  7,  Bui.  Ohio,  Indus.  Com. 

18'5 21£ 

Jones  v.  Commonwealth,  2  Mass.  Workm.  Comp.  Cas.  (1914)  721.  23 

Jones  v.  Great  Central  Ry.  Co.,  18  T.  L.  R.  65,  4  W.  C.  C.  23 286 

Jones  v.  M.  &  O.  R.  Co.,  127  S.  W.  145 323 

Jones  v.  Ocean  Coal  Co.,  2  Q.  B.  124,  11  N.  C.  C.  A.  671  (note) ....  189 
Johansen  v.  Union  Stockyards  Co.  of  Omaha,  99  Neb.  328,  156 

N.  W.  511 304 

Johnson  v.  Engstrum  Co.,  2  Cal.  Ind.  Ace.  Comm.  Dec.  788 259 

Johnson  v.  London  Guaranty  &  Accident  Company,  217  Mass.  338, 

104  N.  E.  735,  4  N.  C.  C.  A.  843 74,  288 

Johnson  v.  Lowe,  2  Cal.  Ind.  Ace.  Comm.  Dec.  568 76 

Johnson  v.  Marshall,  Sons  &  Co.,  Ltd.,  App.  Cases  409,  411 267 

Johnson  v.  Nelson,  128  Minn.  158,  150  N.  W.  620 45,  334 


R 

Kane  v.  Merry  &  Cunningham,  Ltd.,  48  Scot.  L.  R.  430,  4  B.  W.  C. 

C.  379 136 

Kane  v.  New  Jersey,  242  U.  S.  160,  169,  37  Sup.  Ct.  Rep.  30 382 

Karemaker  v.  Owners  of  S.  S.  Corsican,  4  B.  W.  C.  C.  285 114 

Karny  v.  N.  W.  Malleable  Iron  Co.,  160  Wis.  316,  151  N.  W.  786. .  47 
Keaney  v.  Tappan,  217  Mass.  5,  104  N.  E.  438,  4  N.  C.  C.  A.  556 

34,  60 

Keenan  v.  Flemington  Coal  Co.,  40  Scot  L.,  R.  144,  10  Scot,  L.  T. 

409  104 


472  MANUAL  OF  COMPENSATION   LAW 

Page 
Keigher  v.  General  Electric  Co.  (New  York),  173  App.  Div.  207..  225 

Kelly  v.  Consumers  Co.,  111.  Ind.  Bd.  Dec.,  July  30,  1914 248 

Kelly  v.  Kerry  County  Council,  42  Ir.  Law  Times  23,  1  B.  W.  C.  C. 

194  110 

Kenelly  v.  Steam's  Salt  &  Lumber  Co.,  Mich.  Ind.  Ace.  Bd.  1  Nat. 

Comp.  Journal  (July,  1914) 16 

Kennedy  v.  David  Kaufman  Sons  Co.  —  (N.  J.)  — ,  91  Atl.  99..  22 
Kennerson  v.  Thomas  Towboat  Co.,  89  Conn.  367,  94  Atl.  372, 

L.  R.  A.  1916A  436 325,  330 

Kenney,  Ben,  in  re  claim  of,  Op.  Sol.  (1915)  57 403 

Kenney  v.  City  of  Boston,  222  Mass.  401,  111  N.  E.  47 200 

Kenny  v.  Union  Ry.  Co.  of  New  York  City,  166  App.  Div.  497,  152 

N.  Y.  Supp.  117,  8  N.  C.  C.  A.  986 10 

Kerr  v.  William  Baird  &  Co.,  Ltd.,  48  Scot.  L.  R.  646,  4  B  W.  C.  C. 

397  136 

Keyes-Davis  Co.  v.  Alderdyce,  Detroit  Legal  News,  May  3,  1913,  3 

N.  C.  C.  A.  639 325 

Kid  v.  N.  Y.  Motion  Picture  Co.,  1  Cal.  Ind.  Ace.  Comm.  Dec.  (No. 

22,  1914)  2,  9  N.  C.  C.  A.  87 182 

Kidd  v.  Pearson,  128  U.  S.  1,  26,  32  L.  ed.  346,  352,  2  Inters.  Com. 

Rep.  232,  9  Sup.  Ct.  Rep.  6 375 

Kiernan  v.  Portland,  223,  U.  S.  151,  56  L.  ed.  386,  32  Sup.  Ct.  Rep. 

231 371 

Kilberg  v.  Vitch,  156  N.  Y.  S.  971,  171  App.  Div.  89 205 

Kill  v.  Industrial  Commission  of  Wisconsin  et  al.,  160  Wis.  549, 

152  N.  W.  148,  L.  R.  A.  1916A  14 68 

Kill  v.  Plankinton  Packing  Co.,  Wis.  Workm.  Comp.  Rep.  (1914)  83, 

6  N.  C.  C.  A.  679  (note) 238 

King  v.  Viscoloid  Co.,  219  Mass.  420,  106  N.  E.  988,  7  N.  C.  C.  A. 

254 57 

Kingsley  v.  Donovan  et  al.,  169  App.  Div.  828,  155  N.  Y.  Supp.  801 

134,  138 

Klawinski  v.  Lake  Shore  &  Michigan  Southern  R.  R.  Co.,  185  Mich. 

643,  152  N.  W.  213,  L.  R.  A.  1916A  342 108 

Knott  v.  Tingle,  Jacobs  &  Co.,  4  B.  W.  C.  C..  55 181 

Knopp  v.  American  Car  Foundry  Co.,  186  111.  App.  605,  5  N.  C.  C. 

A.  798  105 

Knutter  v.  New  York  &  N.  J.  Teleph.  Co.,  67  N.  J.  L.  646,  650-653, 

58  L.  R.  A.  808,  52  Atl.  565,  12  Am.  Neg.  Rep.  109 345 

Kock  v.  Oakland  Brewing  &  Malting  Co.,  1  Cal.  Ind.  Ace.  Comm. 

Dec.  (No.  20,  1914)  23,  8  N.  C.  C.  A.  (note)  285 108 

Kohler  v.  Frohmann  et  al,,  167  App.  Div.  533,  153  N.  Y.  Supp. 

•559    .  13 


TABLE  OF  CASES  473 

Page 
Konkel  v.  Ford  Motor  Co.,  Mich.  Ind.  Ace.  Bd.  Bui.  (No.  3,  1913) 

29,  11  N.  C.  C.  A.  (note)  716 312 

Koras  v.  Northern  Electric  R.  R.  Co.,  2  Cal.  Ind.  Ace.  Comm. 

Dec.  196 80 

Kramer,  David,  in  re  claim  of,  Op.  Sol.  (1915)  322 415 

Krauss  v.  Geo.  H.  Fritz  &  Son,  87  N.  J.  L.  321,  93  Atl.  578 198,  205 

Kricinovich  v.  American  Car  &  Foundry  Co.  (Mich.),  15.9  N.  W. 

362 239 

Kringle  v.  Myers,  6  N.  C.  C.  A.  (note)  713 116 

Krzus  v.  Crow's  Nest  Pass  Coal  Co.,  Ltd.,  6  B.  W.  C.  C.  271 214 

Ky.  State  Journal  Co.  v.  Workmen's  Compensation  Board,  161 

Ky.  562,  170  S.  W.  1166  L.  R.  A.  1916A,  389 312,  334 

L 

La  Fayette  Ry.  Co.  v.  Adams,  26  Ind.  76 422 

Larsen  v.  Paine  Drug  Co.  et  al.,  155  N.  Y.  S.  759,  169  App.  Div. 

838,  affirmed  in  218  N.  Y.  252,  112  N.  E.  725 11 

Lauruska  v.  Empire  Mfg.  Co.,  271  111.  304,  111  N.  E.  82 334 

Lawton  v.  Steele,  152  U.  S.  133,  136,  38  L.  ed.  385,  388,  14  Sup. 

Ct.  Rep.  499 375 

Leeds  &  Liverpool  Canal  Co.  v.  Hesketh  (1910),  3  B.  W.  C.  C. 

303  143 

Lehmann  v.  Ramo  Films,  155  N.  Y.  Supp.  1032,  92  Misc.  Rep.  418. .  326 
Lemieux  v.  Cont.  Mutual  Liability  Ins.  Co.,  222  Mass.  346,  111 

N.  E.  782 249,  298 

Lester  v.  Otis  Elevator  Co.,  153  N.  Y.  S.  1058,  90  Misc.  Rep.  649, 

affirmed,  169  App.  Div.  613,  155  N.  Y.  S.  524 308 

Lewis  &  Clark  Co.  v.  Ind.  Ace.  Comm.  (Mont.),  155  Pac.  268 335 

Lewis  v.  Port  of  London  Authority,  W.  C.  &  Ins.  Rep.  299 87 

Limron  v.  Blair  et  al.,  181  Mich.  76,  147  N.  W.  546,  5  N.  C.  C.  A. 

866  161 

Liondale  Bleach  Dye  &  Paint  Works  v.  Riker,  85  N.  J.  L.  426,  89 

Atl.  929,  4  N.  C.  C.  A.  713 62,  65 

Lipscomb,  R.,  in  re  claim  of,  Op.  Sol.  (1915)  50. 401 

Long  v.  Bergen  Common  Pleas,  84  N.  J.  Law,  117,  86  Atl.  529 . .  302 
Longyear  v.  Buck,  83  Mich.  236,  240,  10  L.  R.  A.  42,  47  N.  W.  234.  382 
Louisville  &  J.  Ferry  Co.  v.  Com.,  104  Ky.  727,  47  S.  W.  878,  20  Ky. 

L.  R.  927 322 

Louisville  &  N.  R.  Co.  v.  Melton,  218  U.  S.  36,  53,  54  L.  ed.  921,  928, 

47  L.  R.  A.  (N.  S.)  84,  30  Sup.  Ct.  Rep.  676 347 

Low  v.  General  Steam  Fishing  Co.,  25  Times  L.  R.  787,  53  Sol.  Jo. 

763  104 


474  MANUAL  OF  COMPENSATION  LAW 

Page 

Luckie  v.  Merry,  2  K.  B.  83,  9  N.  C.  C.  A.  895 254 

Ludwig  v.  Western  U.  Teleg.  Co.,  216  U.  S.  146,  162,  54  L.  ed  423, 

429,  30  Sup  Ct.  Rep.  280 374 

Luther  v.  Borden,  7  How.  1,  39,  42,  12  L.  ed.  581,  597,  599 371 

Lynch  v.  Marquis  of  Lansdowne,  48  Ir.  L.' T.  89,  9  N.  C.  C.  A.  903.  253 

Luttrell,  T.  F.,  in  re  claim  of,  Op.  Sol.  (1915)  219 408 

Lydman  v.  De  Haas,  185  Mich.  128,  151  N.  W.  718,  8  N.  C.  C.  A.  649  16 


M 

MacGillivray   v.    The    Northern    Counties    Institute   for   the    Blind 

(Eng.),  48  Sc.  L.  R.  811,  4  B.  W.  C.  C.  429,  11  N.  C.  C.  A.  77.  . .        7 
Mackin   v.   Detroit-Timkin   Axle   Co.,    187    Mich.   8,   153    N.   W.   49 

283,  316,  334 

Madden,  in  re,  222  Mass.  487,  111  N.  E.  379 •    76 

Madden  v.  Whitham,  38  N.  J.  L.  J.~113,  10  N.  C.  C.  A.  1045  (note) . .     85 

Maffia  v.   Aquilino,   3   Cal.   Ind.   Ace.   Comm.   Dec.   15 280 

Mahan  v  Frankfort  General  Ins.  Co.,  2  Cal.  Ind.  Ace.  Comm.  Dec. 

530     225 

Mahoney  v.  Seymour  Mfg.  Co.,  1  Conn.  Comp.  Dec.  292 164 

Main  Colliery  Co.,  Ltd.,  v.  Davies,  16  T  L.  R.  460 194,  195 

Malone  v.  Cayzer,  45  Scot,  L.  R.  351,  1  B.  W.  C.  C.  27,  L.  R.  A. 

1916A    (note)    339 110 

Mann  v.  Glastonbury  Knitting  Co..  96  Atl.  368.  90  Conn.  116 104 

Manning,  D.  C.,  in  re  claim  of,  Op.  Sol.   (1915)   279 412 

Marks  v.  Came,  2  K.  B.  516,  25  Times  L.  R.  620,  2  B.  W.  C.  C.  186, 

L.  R.  A.  1916A  (note)  95 25 

Martin  v.  Lovibond,  7  B.  W.  C.  C.  243,  5  N.  C.  C.  A.  985 96,  104 

Martin  v.  Pittsburg  &  L.  E.  R.  Co.,  203  U  S.  284,  294,  51  L.  ed.  184, 

191,  27  Sup.  Ct.  Rep.  100,  8  Ann.  Gas.  87 344 

Marshall  v.  Dye,  231  U.  S.  250,  256,  58  L.  ed.  206,  207,  34  Sup.  Ct. 

'  Rep.    92    371 

Marshall  v.  Orient  Steam  Navigation  Co.,  Ltd.,  (1910),  1  K.  B.  79; 

7  L.  J.  K.  B.  204,  101  L.  J.  584,  26  J.  L.  R.  70,  54  Sol.  J.  64,  3 

B.  W.  C.  C.  15,  6  N.  C.  C.  A.  677   (note).. 236,  237 

Mason  &  Hodge  Company  v.  Highland,  116  S.  W.  320 20 

Massachusetts  Bonding  &  Ins.  Co.  v.  Pillsbury  et  al.,  170  Cal.  767, 

151  Pac.  419,  11  N.  C.  C.  A.  426 224 

Matecncy  v.  Vierling  Steel  Works,  187  111.  App.  448 202,  217,  303 

Mathison  v.  Minneapolis  Street  R.  Co.,  126  Minn.  286,  L.  R.  A. 

1916D  412,  148  N.  W.  71,  5  N.  C.  C.  A.  871 48,  334,  357 

Matthews  v.  Bedworth,  1  W.  C.  C.  124  (Eng) .  .  135 


TABLE   OF   CASES  475 

Page 
Matwiczuk  v.  American  Car  &  Foundry  Co.,  155  N.  W.  412  (Mich.) 

247,  249 

Mazzarisi  v.  Ward  &  Tulley,  156  N.  Y.  Supp.  964,  170  App.  Div. 

868     70 

Maziarski  v.  George  A.  Ohl  &  Co.  86  N.  J.  Law  692,  93  Atl.  110..   170 

Medler  v.  Medler  (Eng).,  1  B.  W.  C.  C.  332 212 

Meley  v.  Massachusetts  Employees'  Ass'n,  219  Mass.  136,  106  N. 

E.    559    166 

Mellin  Lumber  Co.  v.  Ind.  Comm.,  154  Wis.  114,  L.  R.  A.  1916A 

374,  142  N.  W.  187,  Ann.  Cass.  1915B  997 154,  336 

Memphis  Cotton  Oil  Co.  v.   Tolbert   (Tex.  Civ.   App.),  171   S.  W. 

309,  7  N.   C.  C.  A.   547 335 

Menominee  Bay  Shore  Lumber  Co.  v.  Industrial  Com.,  162  Wis. 

344,  156  N.  W.  151 283,  298 

Menzies  v.  McQuibban,  2  F.  732,  37  Sc.  L.  R.  526,  10  N.  C.  C.  A. 

(note)     480 124 

Mercuric  v.  California  Transportation  Co.,  1  Cal.  Ind.  Ace.  Comm. 

Dec.   (No.  16,  1914)   11 239 

Merrill  v.  Los  Angeles,  etc.,  Co.,  158  Cal  503,  111  Pac.  534 68 

McArdle  v.  Swansea  Harbour  Trust,  8  B.  W.  C.  C.  489,  11  N.  C.  C. 

A.    175    74 

McAuliffe,   in   re,   Ohio   Ind.   Comm.,   Oct.   9,   1914,   6   N.   C.   C.   A. 

(note)    958    29 

McCarthy  v.  Order  of  Protection,  153  Mass.  318 440 

McCoy  v.  Michigan  Screw  Co.,  180  Mich.  454,  147  N.  W.  572,  L. 

R.  A.  1916A  323 121,  138,  177 

McCrae  v.  Renfrew,  7  B.  W.  C.  C.  898 272 

McCrackin  v.  Missouri  Valley  Bridge  &  Iron  Co.,  96  Kan.  353,  150 

Pac.    832    300 

McDermott  v.  Grindal   &    Sons,   111.   Ind.   Bd.,   Aug.   3,   1914 24 

McFarland  v.  Central  R.  R.  Co.  of  N.  J.,  84  N.  J.  L.  435,  87  Atl.  144, 

4  N.  C.  C.  A.  592    247 

McGarvey  v.  Independent  Oil  Grease  Co.,  156  Wis.  580,  146  N.  W. 

895,  5   N.  C.   C.  A,  803 309 

McGlone  v.  Womack,  129  Ky.  274,  283,  et  seq.,  17  L.  R.  A.  (N.  S.) 

855,    111    S    W.    688 382 

Mclntyre  v.  Hilliard  Hotel  Co.,  155  N.  Y.  Supp.  859 14 

Mclntyre  v.  Rodger  &  Co.,  6  T.  176,  41  Scot.  L.  R.  476,  11  Scott.  L. 

T.  467   105 

McKee  v.  Stein,  3  B.  W.  C.  C.  544,  L.  R.  A.  1916A  (note)  159.182,  314 

McKrill  v.  Howard,  2  B.  W.  C.  C.  460 105 

McLaughlin  v.  Anderson,  48  Scot.  L.  R.  349,  4  B.  W.  C.  C.  376.  .105,  135 
McLean,  in  re,  223  Mass.  342,  111  N.  E.  783 250 


476  MANUAL  OF  COMPENSATION  LAW 

Page 

McNally  v.  Hudson  &  M.  R.  Co.,  95  A.  122,  87  N.  J.  L.  455 241 

McNicol  et  al.  v.  Emp.  Lia.  Corp.,  Ltd.,  215  Mass.  497,  102  N.  E. 

697,  L.  R.  A.  1916A  306,  4  N.  C.  C.  A.  522 117 

McNiece  v.  Singer  Sewing  Machine  Co.,  4  B.  W.  C.  C.  351 95 

McQueeney  v.  Sutphen,  167  App.  Div.  528,  153  N.  Y.  Supp.  554 335 

McQueeney  v.  Sutphen  &  Hyer,  153  N.  Y.  Supp.  554 12 

McRoberts  v.  National  Zinc  Co.,  93  Kan.  364,  144  Pac.  247.  .53,  142,  333 

McSorley,  John  F.,  in  re  claim  of,  Op.  Sol.  (1915)  331 417 

McWeeny  v.  Standard  Boiler  Plate  Co.,  210  Fed.  507,  4  N.  C.  C.  A. 

919,  affirmed  218  Fed.  361,  134  C.  C.  A-.  169 319 

Middleton  v.  Texas  Power  &  Light  Co.  (Tex.),  185  S.  W.  556,  11 

N.  C.  C.  A.  873 335,  357 

Mihaica  v.  Mlagenovich  and  Gillespie,  1  Cal.  Ind.  Ace.  Comm.  Dec. 

(1914)  174,  10  N.,  C.  C.  A.  (note)  478 123 

Mihm  v.  Hussey,  155  N.  Y.  S.  860,  169  App.  Div.  742 13 

Mileta  v.  Newport  Mining  Co.,  Mich.  Indus.  Ace.  Bd.,  July,  1913 ...  136 
Miller  v.  N.  Y.  Railways  Co.,  157  N.  Y.  S.  200,  171  App.  Div.  316.  ..  309 
Miller  v.  Pillsbury  et  al.,  164  Cal.  199,  128  Pac.  327,  5  N.  C.  C.  A. 

899     15 

Miller  v.  Public  Service  Ry.  Co.,  84  N.  J.  Law  174,  85  Atl.  1030.196,  211 
Miller  v.  Richardson,  W.  C.  and  Ins.  Rep.  381,  9  N.  C.  C.  A.  969 . .  257 
Miller  v.  Riverside  Storage  &  Cartage  Co.,  155  N.  W.  462  (Mich) . .  196 
Milliken  v.  Travelers'  Ins.  Co.,  216  Mass.  293,  103  N.  E.  898,  L.  R. 

A.  1916A  337    '. Ill 

Milwaukee  v.  Althoff,  156  Wis.  68,  145  N.  W.  238,  L.  R.  A.  1916A 

327,  4  N.   C.   C.  A.  110 98 

Milwaukee  v.  Industrial  Commission,  160  Wis.  238,  151  N.  W.  247  66 
Milwaukee  Coke  &  Gas  Co.  v.  Industrial  Commission,  160  Wis.  247, 

151  N.  W.  245,  9  N.  C.  C.  A.  597 215,  287,  297 

Milwaukee  Western  Fuel  Co.  v.   Ind.   Comm.,   159  Wis.   635,  150 

N.  W.  998 288 

Minneapolis  &  St.  L.  R.  Co.  v.  Bombolis,  241,  U.  S.  211,  217,  60 

L.  ed.  961,  963,  L.  R.  A.  1917A,  86,  36  Sup.  Ct.  Rep.  595 372 

Minneapolis  &  St.  L.  R.  Co.  v.  Herrick,  127  U.  S.  210,  32  L.  ed. 

109,   8   Sup.   Ct.   Rep.   1176 347 

Minneapolis   &   St.  L.  R.  Co.  v.   Nash,  242  U.  S.  — ,  37   Sup.  Ct. 

Rep.    239 385 

Minnesota  Iron  Co.  v.  Kline,  199  U.  S.  593,  598,  50  L.  ed.  322,  325, 

26  Sup.  Ct.  Rep.  159,  19  Am.  Neg.  Rep.  625 347 

Missouri,  K.  &  T.  R.  Co.  v.  Cade,  233  U.  S.  642,  650,  58  L.  ed.  1135, 

1137,  34  Sup.  Ct.  Rep.  678 354 

Missouri  P.  R.  Co.  v.  Castle,  224  U.  S.  541,  544,  56  L.  ed.  875,  878, 
•  32    Sup.    Ct.    Rep.    606 .   347 


TABLE  OF  CASES  477 

Page 

Missouri  Pac.  R.  R.  Co.  v.  Mackey,  33  Kan,  298,  315;  6  Pac.  291..  412 
Missouri  P.  R.  Co.  v.  Mackey,  127  U.  S.  205,  208,  32  L.  ed.  107, 

108,  8  Sup.  Ct.  Rep.  1161 347 

Mitchell  v.  Williams,  27  Ind.  62 382 

Mobile,  J.  &  K.  C.  R.  Co.  v.  Turnipseed,  219  U.  S.  35,  42,  55  L.  ed. 

78,  79,  32  L.  R.  A.  (N.  S.)  226,  31  Sup.  Ct.  Rep.  436,  Ann.  Cas. 

1912A  463,  2  N.  C.  C.  A.  243 359 

Mockett  v  Ashton,  84  N.  J.  Law  452,  90  Atl.  127,  4  N.  C.  C.  A.  862 . .  302 
Molamphy  v.  Sheridan,  W.  C.  &  Ins.  Rep.  20,  6  N.  C.  C  A.  682 

(note)  239 

Mondou  v.  New  York,  N.  H.  &  H.  R.  Co.,  223  U.  S.  1,  50,  56  L. 

ed.  327,  346,  38  L.  R.  A.  (N.  S.)  44,  32  Sup.  Ct.  Rep.  169,  1  N. 

C.  C.  A.  875 344,  347,  353 

Moore  v.  Lehigh  Valley  R.  R.  Co.,  169  App.  Div.  177,  154  N.  Y. 

Supp.  620 132,  335 

Morales,  Victorino,  in  re  claim  of,  Op.  Sol.  (1915)  295 414 

Morey  v.  Brown,  42  N.  H.  373,  375 382 

Morgan  v.  Dixon,  5  B.  W.  C.  C.  184,  L.  R.  A.  1916A  (note)  161..  235 

Morgan  v.  S.  S.  "Zenaida,"  25  T.  L.  R.  446,  2  B  W.  C.  C.  19 115 

Morris  v.  Lambeth  Borough  Council,  22  Times,  L.  R.  22 105 

Moss  &  Co.  v.  Akers,  4  B.  W.  C.  C.  294,  6  N.  C.  C.  A.  683  (note) . .  239 
Mountain  Timber  Co.  v.  Washington,  243  U.  S.  — ,  37  Sup.  Ct. 

Rep.  260  364,  385 

Mueller  v.  Oelkers  Mfg.  Co.,  36  N.  J.  Law  J.  117,  6  N.  C.  C.  A. 

(note)  960  30 

Mulhall  v.  Fallen,  176  Mass.  266,  57  N.  E.  386 331,  440 

Mulhern  v.  McDavitt,  16  Gray,  404 219 

Mullen  v.  D.  Y.  Stewart  &  Co.,  Ltd.,  45  Scot.  L.  R.  729,  1  B.  W. 

C.  C.  204 107 

Mulligan  v.  Dick,  41  Scot,  L.  R.  77 311 

Munn,  William  F.,  in  re  claim  of,  Op.  Sol.  (1915)  597 443 

Munn  v.  Illinois,  94  U.  S.  113,  134,  24  L.  ed.  77,  87 341 

Murch  v.  Thomas  Wilson's  Sons  &  Co.,  168  Mass.  408 46 

Murphy  v.  Cooney,  7  B.  W.  C.  C.  962 272 

Murray,  Wm.,  in  re  claim  of,  Op.  Sol.  (1915)  239 410 

Murray  v.  North  British  R.  Co.,  41  Scot.  L.  R.  383,  L.  R.  A.  1916A 

(note)  361  311 

Murray  v.  South  Carolina  R.  Co.,  (1841)  1  McMull.  L.  385,  398, 

36  Am.  Dec.  268  '.  345 

Mutter  v.  Thomson,  50  Scot.  L.  R.  447,  6  B.  W.  C.  C.  424 71 

Muzik  v.  Erie  R.  R.  Co.,  85  N.  J.  Law  131,  88  Atl.  248,  affirmed, 

86  N.  J.  Law  695,  92  Atl.  1087,  Ann,  Cas.  1916A  140 137,  139 


478  MANUAL  OF  COMPENSATION  LAW 

N 

Page 

Nash  v.  The  Rangatira,  7  B.  W.  C.  C.  590 272 

N.  C.  &  St.  L.  Ry.  Co.  v.  Com.,  160  Ky.  50,  169  S.  W.  511;  Thomas' 

Kentucky  Words  and  Phrases,  p.  498 322 

National   Council  of  Knights   and   Ladies   of   Security   v.   Wilson, 

147   Ky.   296,   143   S.   W.   1000 277 

Nekoosa-Edwards  Paper  Co.  v.  Industrial  Com.  of  Wis.,  154  Wis. 

105,  141  N.  W.  1013,  L.  R.  A.  1916A  348 272,  418 

Nellis,  James,  in  re  claim  of,  Op.  Sol.  (1915)  285 413 

Nelson-Spelliscy  Imp.  Co.  v.  Dist.  Ct.,  128  Minn.  221,  150  N.  W. 

623    ...:...: 288 

New  Bedford  v.  Hingham,  117  Mass.  445 197 

Newcomb  v.  Albertson,  85  N.  J.  L.  435,  89  Atl.  928,  4  N.  C.  C.  A. 

783 65,    71,   129 

Newman   v.    Newman,    169   App.    Div.   745,    155    N.    Y.    Supp.    665, 

affirmed  218  N.  Y.  325,  113  N.  E.  332 95 

New  York  C.  R.  Co.  v.  White,  243  U.  S.  — ,  37  Sup.  Ct.  Rep.  247.  ... 

358,  361,  371,  373,  376,  378,  380,  383 

New  York  ex  rel.  Hatch  v.  Reardon,  204  U.  S.  152,  160,  51  L.  ed. 

415,  422,  27  Sup.  Ct.  Rep.  188,  9  Ann.  Gas.  736 : 359 

New   York   Shipbuilding  Co.   v.   Buchanan,   84   N.  J.   Law  543,   87 

Atl.   86    301 

Nichols  v.  Britton  Ferry  Urban  Dis.  Council  (1915),  W.  C.  &  Ins. 

Rep.  14,  9  N.  C.  C.  A.  974 257 

Niemark  v.  West  Coast  R.  &  Mfg.  Co.,  5  N.  C.  C.  A.  859 178 

Niemeier,  Edward  (alias  W.  J.  Niemeier),  in  re  claim  of,  Op.  Sol. 

(1915)    551    ,f 434 

Nisbet  v.  Rayne  &  Burn  (Eng.),  2  K.  B/689,  3  N.  C.  C.  A.  268 135 

Nitram  Co.  v.  Court  of  Common  Pleas,  84  N.  J.  Law  243,  86  Atl.  435  170 
Noble  State  Bank  v.  Haskell,  219  U.  S.  104,  55  L.  ed.  112,  32  L.  R. 

A.  (N.  S.)  1062,  31  Sup.  Ct.  Rep.  186,  Ann.  Cas.  1912A  487 381 

Northern  P.  R.  Co.  v.  Herbert,  116  U.  S.  642,  647,  29  L.  ed.  755, 

758,  6  Sup.  Ct.  Rep.  590 345 

Northwestern  Fuel  Co.  v.  Leipus,  161  Wis.  450,  152  N.  W.  856,  9 

N.  C.  C.  A.  347 158 

Northwestern  Iron  Co.  v.  Industrial  Comm.  of  Wis.,  154  Wis.  97, 

142  N.  W.  271,  L.  R.  A.  1916A  366,  Ann.  Cas.  1915B  877,  3  N. 

C.  C.  A.  670 64,  206,  207,  210 

Northwestern    Iron    Co.   v.    Industrial    Comm.,    160    Wis.    633,    152 
'  N.  W.   416    ..130,  137 


TABLE   OF   CASES  479 

O 

Page 

Obrien  v.  Star  Line,  1  B.  W.  C.  C.  177 : .  .  272 

O'Connell  v.  Simms  Magneto  Co.,  85  N.  J.  Law  64,  89  Atl.  922,  4 

N.  C.  C.  A.  590 162 

O'Hare  v.  Employers'  Liability  Assurance  Corpn.,  2  Mass.  Workm. 

Comp.  Cas.  369,  11  N.  C.  C.  A.  178 76 

Ohio  ex  rel.  Davis  v.  Hildebrandt,  241  U.  S.  565.  60  L.  ed.  1172,  36 

Sup.  Ct.  Rep.  708 371 

Oldenberg  v.  Ind.  Comm.,  159  Wis.  333,  150  N.  W.  444 288 

Olson  v.  The  Dorset,  6  B.  W.  C.  C.  658 115 

O'Neil  v.  Ropner  &  Co.  (1908),  43  Ir.  L.  T.  2,  2  B.  W.  C.  C.  334 144 

Opinion  of  Justices,  209  Mass.  607,  96  N.  E.  308,  1  N.  C.  C.  A. 

557  ! 48,  334,  357 

Osborne  v.  Vickers,  2  Q.  B.  91,  2  W.  C.  C.  130 234 

P 

Pacific   Coast   Casualty   Co.   v.   Pillsbury,   171   Cal.   319,   153   Pac. 

24 145,  226 

Pacific  States  Teleph.  &  Teleg.  Co.  v.  Oregon,  223  U.  S.  118,  56  L. 

ed.  377,  32  Sup.  Ct.  Rep.  224 371 

Paddington  Burough  Council  v.  Stack,  2  B.  W.  C.  C.  402,  6  N.  C. 

C.  A.  678  (note)  -.237 

Page  v.  Burtwell,  2  K.  B.  (Eng.)  758,  L.  R.  A.  1916A  (note)  361.  ..  311 

Pagliarulo,  Antonio,  in  re  claim  of,  Op.  Sol.  (1915)  503 423 

Panazuk,  in  re,  217  Mass.  589,  105  N.  E.  368 222 

Papinaw  v.  Grand  Trunk  Ry.  Co.  (Mich.),  155  N.  W.  545 288 

Pattinson  v.  Stevenson,  2  W.  C.  C.  156 300 

Pawlak  v.  Hayes,  162  Wis.  503,  156  N.  W.  464,  11  N.  C.  C.  A.752.  ...  242 
Peabody  v.  Town  of  Superior,  Wis.  Ind.  Comm.  Bui.  (1912),  99, 

8  N.  C.  C.  A.  961 17 

Pedersen  v.  Delaware,  L.  &  W.  R.  Co.,  229  U.  S.  146,  152,  57  L. 

ed.  1125,  1128,  33  Sup.  Ct.  Rep.  648,  Ann.  Cas.  1914C  153,  3  N. 

C.  C.  A.  779 338 

Peet  v.  Mills,  76  Wash.  437,  136  Pac.  685,  'Ann.  Cas.  1915D  154, 

4  N.  C.  C.  A.  786,  L.  R.  A.  1916A  358 51,  336 

Pelham  v.  Burstein,  1  Conn.  Comp.  Dec.  49 312 

Pendar  v.  H.  &  B.  Amer.  Machine  Co.,  35  R.  I.  321,  87  Atl.  1,  L.  R. 

A.  1916A  428 326 

Penn  v.  Spiers  &  Pond,  1  B.  W.  C.  C.  401 181 

Perham  v.  American  Roofing  Co.  et  al.,  159  N.  W.  140  (Mich.) 24 

Perkins,  Charles,  in  re  claim,  Op.  Sol.  (1915)  579 438 

Permoli  v.  New  Orleans,  3  How.  589,  610,  11  L.  ed.  739,  748 362 


480  MANUAL  OF  COMPENSATION  LAW 

Page 
Perry  v.  Wright  (Eng.),  1  K.  B.  441,  1  B.  W.  C.  C.  351,  L.  R.  A. 

1916A  (note)  151 184 

Pettee  v.  Noyes  (Minn.),  157  N.  W.  995 56 

Petrozino  v.  American  Mutual  Liability  Ins;  Co.,  219  Mass.  498, 

107  N.  E.  370 195,  196,  213 

Piatt  v.  Swift  &  Co.,  188  Mo.  App.  584,  176  S.  W.  434 317 

Pierce  v.  Boyer-Van  Kuran  Lumber  &  Coal  Co.,  99  Neb.  321,  156 

N.  W.  509,  L.  R.  A.  1916D  970 121,  138,  303 

Pierce  v.  Providence  Clothing  &  Supply  Co.,  4  B.  W.  C.  C.  242 95 

Pigeon  v.  Employers'  Liability  Assurance  Corporation,  Ltd.,  216 

Mass.  51,  102  N.  E.  932,  4  N.  C.  C.  A.  516,  Ann.  Cas.  1915A 

737  5,  283,  292,  296 

Pimm  v.  Clement  Talbot,  7  B.  W.  C.  C.  565 248 

Pinel  v.  Rapid  Railway  System,  184  Mich.  169,  150  N.  W.  897.  .199,  201 
Plass  v.  Central  New  Eng.  R.  Co.,  169  App.  Div.  826,  155  N.  Y. 

Supp.  854  83 

Platt  v.  Central  N.  E.  Ry.  Co.,  169  App.  Div.  826,  155  N.  Y.  Supp. 

854 288 

Plumb  v.  Cobden  Flour  Mills  Co.,  6  B.  W.  C.  C.  245,  9  N.  C.  C.  A. 

(note) ,  655  137 

Plumley  v.  Ewart  &  Son,  8  B.  W.  C.  C.  464,  L.  R.  A.  1916A  (note) 

85,  9  N.  C.  C.  A.  971 248,  249,  257 

Plummer  v.  Kansas  City,  48  Mo.  App.  484 422 

Plymouth  Coal  Co.  v.  Pennsylvania,  232  U.  S.  531,  545,  58  L.  ed. 

713,  719,  34  Sup.  Ct.  359 343,  359,  361,  370,  379,  383 

Poccardi,  etc.,  v.  Public  Service  Commission  (W.  Va.),  84  S.  E. 

242,  L.  R.  A.  1916A  299 80,  288 

Pontiatowski  v.  Stickley  Bros.  Co.  (Mich.),  160  N.  W.  569 235 

Pope  v.  Heywood  Bros.  &  Wakefield,  221  Mass.  143,  108  N.  E.  1058  47 
Popke  v.  Wanpaca  County,  Wisconsin  Ind.  Comm.  Bui.  (1912)  98, 

8  N.  C.  C.  A.  (Note)  960 17 

Porter  v.  Hopkins,  109  N.  E.  629 335 

Post  v.  Burger  &  Gohlke,  216  N.  Y.  544,  111  N.  E.  351,  10  N.  C. 

C.  A.  888,  Ann.  Cas.  1916B  158 326,  327 

Potter,  Robert  K.,  in  re  claim  of,  Op.  Sol.  (1915)  272 412 

Potts  v.  Niddrie  &  Benhar  Coal  Co.,  Ltd.  (1913)  A.  C.  531 209 

Powley  v.  Vivian  &  Co.,  169  App.  Div.  170,  154  N.  Y.  Supp.  426, 

10  N.  C.  C.  A.  835... 20,  315 

Powers,  S.  A.,  in  re  claim  of,  Op.  Sol.  (1915)  214 408 

Price  v.  B.  B.  &  Co.  (1907),  2  B.  W.  C.  C.  337 144 

Price  v.  Cloverleaf  Coal  Mining  Co.,  188  111.  App.  27 46 

Proctor  v.  Robinson,  80  L.  J.  K.  B.  641,  1  K.  B.  1004. .  .  278 


TABLE   OF   CASES  481 

Page 
Przykopenski  v.  Citizens  Coal  Mining  Co.,  270  111.  275,  110  N.  E. 

336 334 

Puget  Sound  Traction,  Light  &  Power  Co.  v.  Schleif,  220  Fed.  48, 

135  C.  C.  A.  616 14 

Purdy  v.  Sault  Ste  Marie,  Mich.  Ind.  Ace.  Bd.,  5  N.  C.  C.  A.  905. ..  18 

R 

Railway  Association  v.  Dent,  213  Fed.  981 83 

Rakies  v.  Del.  L.  &  W.  R.  Co.,  89  Atl.  953,  4  N.  C.  C.  A.  734. .  .163,  165 

Ralph  v.  Mitchell,  W.  C.  &  Ins.  Rep.  501  (Eng.) 249 

Randall  v.  Baltimore  &  O.  R.  Co.,  109  U.  S.  478,  483,  27  L.  ed.  1003, 

1005,  3  Sup.  Ct.  Rep.  322 1 .  345 

Rankine  v.  Alloa  Coal  Co.,  Ltd.,  6  Fraser  375,  41  S.  L.  R.  306,  11 

S.  L.   T.   670 252,  253 

Raymond  v.  Chicago,  M.  &  St.  P.  R.  Co.,  243  U.  S.  — ,  37  Sup.  Ct. 

Rep.  268   ." 338,  383 

Rayner  v.  Sligh  Furniture  Co.,  180  Mich.  168,  146  N.  W.  665,  4  N. 

C.  C.  A.  851,  L.  R.  A.  1916A  22,  Ann.  Cas.  1916A  386 101,  288 

Reck  v.  Whittlesberger,  181  Mich.  463,  148  N.  W.  247,  Ann.  Cas. 

1916C  771,  5  N.  C.  C.  A.  917 283,  290,  318 

Redondo,  J.  G.,  in  re  claim  of,  Op.  Sol.  (1915)  563 438 

Refuge  Assurance  Co.  v.  Millar,  49  Scot  L.  R.  67,  5  B.  W.  C.  C. 

522    136 

Reeks  v.  Kynoch,  Ltd.,  3  B.  W.  C.  C.  14,  2  N.  C.  C.  A.  (note)  860. .  265 

Rees,  William,  in  re  claim  of,  Op.  Sol.  (1915)  599 444 

Reimers  v.  Proctor  Pub.  Co.,  85  N.  J.  L.  441,  89  Atl.  931,  4  N.  C. 

C.  A.  738   87,  128,  247 

Ress  v.  Youngstown  Sheet  &  Tube  Co.,  6  N.  C.  C.  A.  (note)  713..  116 
Reynolds  v.  Day,  79  Wash.  499,  140  Pac.  681,  L.  R.  A.  1916A  432, 

5  N.  C.  C.  A.  814 326 

Reynolds  v.  Smith,  1  Cal.  Ind.  Ace.  Comm.  Dec.  (No.  3,  1914)  2, 

9  N.  C.  C.  A.  90 181 

Rheinwald  v.  Builders'  Brick  &  Supply  Co.,  168  App.  Div.  425,  153 

N.  Y.   Supp.  598 21 

Rhyner  v.  Hueber  Bldg.  Co.,  156  N.  Y.  S.  903,  171  App.  Div.  56. ..  196 

Richardson  v.  Sears-Roebuck  &  Co.,  271  111.  325,  111  N.  E.  85 334 

Rideout,  W.  R.  Co.,  v.  Pillsbury,  —  Cal.  — ,  159  Pac.  435 112,  267 

Rist  v.  Larkin  &  Sangster,  156  N.  Y.  Supp.  875,  171  App.  Div.  71.70,  138 

Roberts,  J.  W.,  in  re  claim  of,  Op.  Sol.  (1915)  422 421 

Roberts  v.  Benham  (1910),  3  B.  W.  C.  C.  430 144 

Roberts  v.  Charles  Wolff  Packing  Co.,  95  Kan.  723,  149  Pac.  413, 

147,  250 


482  MANUAL  OF  COMPENSATION  LAW 

Page 
Robson,  Eckford  &  Co.,  Ltd.,  v.  Blakey,  49  Scot.  L.  R.  254,  5  B.  W. 

C.  C.  536  115 

Rock,  Theodore,  in  re  claim  of,  Op.  Sol.  (1915)  573.. 439 

Rockwell,  A.  M.,  in  re  claim  of,  Op.  Sol.  (1915)  307 414 

Rockwell  v.  Lewis,  168  App.  Div.  674,  154  N.  Y.  Supp.  893 165,  168 

Rodger  v.  Paisley  School  Board,  49  Scot  L.  R.  413,  5  B.  W.  C.  C. 

547  95,  115 

Rodriguez,  Eulogio,  in  re  claim  of,  Op.  Sol.  (1915)  227 409 

Rongo  v.  Waddington  &  Sons,  Inc.,  et  al.,  87  N.  J.  L.  395,  94  Atl. 

408,  9  N.  C.  C.  A.  402 4 

Roper  v.  Freke,  31  T.  L.  R.  507,  9  N.  C.  C.  A.  86 182 

Roper  v.  Greenwood,  83  L.  T.  471 87 

Rose  v.  Morrison,  4  B.  W.  C.  C.  277,  L.  R.  A.  1916A  (note)  318 112 

Rosenquist  v.  Bouring,  2  K.  B.  108,  24  Times  L.  R.  504 181 

Rosenthal  v.  New  York,  226  U.  S.  260,  271,  57  L.  ed.  212,  217,  33 

Sup.  Ct.  Rep.  27,  Ann.  Cas.  1914B  71 359 

Ross  v.  Erickson  Const.  Co.,  89  Wash.  634,  155  Pac.  153,  11  N.  C. 

C.  A.  (note)  757 242 

Ross  v.  Moore,  111.  Ind.  Bd.,  Nov.  6,  1914 24 

Rossi  v.  Standard  Oil  Co.,  2  Cal.  Ind.  Ace.  Comm.  Dec.  307 212 

Rothwell  v.  Davis,  5  W.  C.  C.  141,  6  N.  C.  C.  A.  683  (note) 239 

Rounsaville  v.  Central  Railroad  Co.,  94  Atl.  392 325,  330 

Royman  v.  Fields  (1910)  102,  L.  T.  154,  3  B.  W.  C.  C.  123 143 

Ruabon  Coal  Co.  v.  Thottnas,  3  B.  W.  C.  C.  32,  6  N.  C.  C.  A.  682 

(note)  239 

Rugan,  E.  A.,  in  re  claim  of,  Op.  Sol.  (1915)  285 413 

Rupczynski  v.  Wisconsin  Steel  Co.,  5  N.  C.  C.  A.  860 178 

Ruprecht  v.  Red  River  Lumber  Co.,  2  Cal.  Ind.  Ace.  Comm.  Dec. 

864  280 

S 

Sabella  v.  Brazilerio,  86  N.  J.  L.  505,  91  Atl.  1032,  6  N.  C.  C.  A. 

958  26,  28 

Sadowski  v.  Thomas  Furnace  Co.,  157  Wis.  443,  146  N.  W.  770 64 

Salvatore  v.  New  England  Casualty  Co.,  2  Cal.  Ind.  Ace.  Comm. 

Dec.  355,  11  N.  C.  C.  A.  (note)  760 .243 

San  Francisco  Stevedoring  Co.  v.  Pillsbury,  170  Cal.  321,  149  Pac. 

586,  9  N.  C.  C.  A.  37 324 

Santini  v.  Mammoth  Copper  Mining  Co.,  1  Cal.  Ind.  Ace.  Comm. 

Dec.  161,  11  N.  C.  C.  A.  (note)  32 280 

Sargent,  Margaret  B.,  in  re  claim  of,  Op.  Sol.  (1915)  275 412 

Savage,  in  re,  110  N.  E.  283,  222  Mass.  205 138,  139,  288 


TABLE   OF  CASES  483 

Page 

Savoy  Hotel  Co.  v.  London  County  Council,  1  Q.  B.  665 34 

Sayles  v.  Foley,  96  Atl.  340,  12  N.  C.  C.  A.  949 335,  357 

Schaeffer  v.  DeGrottola,  85  N.  J.  Law  444,  89  Atl.  921,  4  N.  C.  C. 

A.  582,  L.  R.  A.  1916A  (note)  248 29 

Schelf  v.  Kishpaugh,  37  N.  J.  L.  J.  173,  9  N.  C.  C.  A.  (note)  652.  ..  137 

Schlechter,  John  J.,  in  re  claim  of,  Op.  Sol.  (1915)  331 417 

Schmitt  v.  Dooling,  145  Ky.  240,  140  S.  W.  197,  36  L.  R.  A.  (N.  S.) 

881  19 

Schmitz  v.  City  of  Appleton,  Wis.  Ind.  Comm.  Bui.  (1913)  31,  8  N. 

C.  C.  A.  962  18 

Schneider  v.  Provident  L.  Ins.  Co.,  24  Wis.  28,  1  Am.  Rep.  157,  7 

Am.  Neg.  Cas.  174 64 

Schwab  v.  Emporium  Forestry  Co.,  167  App.  Div.  614,  153  N.  Y. 

Supp.  234  151 

Scott,  Jack,  in  re  claim  of,  Op.  Sol.  (1915)  595 443 

Scott  v.  Payne  Bros.,  85  N.  J.  L.  446,  89  Atl.  927,  4  N.  C.  C.  A.  682, 

L.  R.  A.  1916A,  note  248 29,  92 

Seaboard  Air  Line  R.  Co.  v.  Horton,  233  U.  S.  492,  504,  58  L.  ed. 

1062,  1070,  L.  R.  A.  1915C  1,  34  Sup.  Ct.  Rep.  635,  Ann.  Cas. 

1915B  475,  8  N.  C.  C.  A.  834,  239  U.  S.  595,  599,  60  L.  ed.  458, 

461,  36  Sup.  Ct.  Rep.  180 346 

Septimo's  Case,  219  Mass.  430,  107  N.  E.  63,  7  N.  C.  C.  A.  906. .  .147,  288 
Sexton  v.  Newark  Dist.  Teleg.  Co.,  84  N.  J.  L.  85,  86  Atl.  451,  3 

N.  C.  C.  A.  569,  affirmed  86  N.  J.  L.  701,  91  Atl.  1070 

.». 48,  218,  288,  335,  357 

Shade  v.  Ash  Grove  Lime  &  Portland  Cement  Co.,  92  Kan.  146, 

139  Pac.  1193,  5  N.  C.  C.  A.  763,  93  Kan.  257,  144  Pac.  249 

?53,  334,  357 

Shanks  v.  Delaware,  L.  &  W.  R.  Co.,  239  U.  S.  556,  558,  60  L.  ed. 

436,  438,  L.  R.  A.  1916C  797,  36  Sup.  Ct.  Rep.  188 338 

Shaw  v.  Wigan  Coal  &  I.  Co.  (Eng.),  3  B.  W.  C.  C.  81,  L.  R.  A. 

1916A  310  (note)  85,  107 

Sheldon  v.  Needham,  7  B.  W.  C.  C.  471 95 

Sheeran,  John,  in  re  claim  of,  28  Op.  At.  Gen.  254,  Op.  Sol.  (1915) 

207  408 

Sherlock  v.  Ailing,  93  U.  S.  99,  103,  23  L.  ed.  819,  820 354 

Sheridan,  P.  J.  Grol  Const.  Co.,  155  N.  Y.  Supp.  859 14 

Shevchenko  v.  Detroit  United  Ry.,  —  Mich.  — ,  155  N.  W.  423 44 

Shinnick  v.  Clover  Farms  Co.,  169  App.  Div.  236,  154  N.  Y.  Supp. 

423,  9  N.  C.  C.  A.  342 158,  177 

Sibley  v.  State,  89  Conn.  682,  96  Atl.  161 17 

Silcock  &  Sons  v.  Golightly,  1  K.  B.  748,  11  N.  C.  C.  A.  31 277 


484  MANUAL  OF  COMPENSATION  LAW 

Page 
Simmons  v.  Heath  Laundry  Co.  (Eng.),  1  K.  B.  543,  3  B.  W.  C.  C. 

200  187 

Simmons  v.  White  Bros.,  1  Q.  B.  1005,  80  L.  t.  344,  6  N.  C.  C.  A. 

(note)  241 194,  440 

Simons  v.  Lovell,  7  Heisk  (Tenn.)  510 35 

Simpson,  H.  G.,  in  re  claim  of,  Opinion  of  At.  Gen.,  Op.  Sol.  (1915) 

319 415 

Sinnes  v.  Doggett,  80  Wash.  673,  142  Pac.  5 171 

Sioux  Remedy  Co.  v.  Cope,  235  U.  S.  197,  200,  59  L.  ed.  193,  196, 

35  Sup.  Ct.  Rep.  57 337 

Skougstad  v.  Star  Coal  Co.,  Rep.  Wis.  Ind.  Comm.,  1914-15, 

page  31  115 

Slade  v.  Taylor,  8  B.  W.  C.  C.  65 95 

Smale  v.  Wrought  Washer  Co.,  160  Wis.  331,  151  N.  W.  803 308 

Smith,  re,  17  West  L.  Rep.  (Can.)  550 6 

Smith  v.  Colliery  Co.  (1900),  2  W.  C.  C.  121 143 

Smith  v.  General  Motor  Cab  Co.,  Ltd.,  80  L.  J.  K.  B.  839,  1  N.  C. 

C.  A.  576  24 

Smith  v.  Corson,  —  N.  J.  Law  — ,  93  Atl.  112 127 

Smith  v.  National  Sash  &  Door  Co.,  96  Kan.  816,  153  Pac.  533 200 

Smith  v.  Ind.  Ace.  Comm.,  26  Cal.  App.  560,  147  Pac.  600,  8  N.  C. 

C.  A.  1066  38,  288 

Smith  v.  Price  et  al.,  168  App.  Div.  421,  153  N.  Y.  Supp.  221 13,  133 

Smolensk!  v.  Eastern  Coal  Dock  Co.,  87  N.  J.  Law  26,  93  Atl.  85, 

9  N.  C.  C.  A.  531 * 187 

Snelling  v.  Norton  Hill  Colliery  Co.  (1913),  W.  C.  &  Ins.  Rep.  497, 

9  N.  C.  C.  A.  974 255,  257 

Sorensen  v.  Menasha  Paper  Co.,  56  Wis.  342,  14  N.  W.  446 112 

Southall  v.  Cheshire  County  News  Co.,  5  B.  W.  C.  C.  251,  L.  R. 

A.  1916A  (note)  339 112 

Spooner  v.  Beckwith,  183  Mich.  323,  149  N.  W.  971,  L.  R.  A.  1916A 

232  (note)  .87,  297 

Spratt  v.  Sweeney  &  G.  Co.,  168  App.  Div.  403,  153  N.  Y.  Supp. 

505  325,  326 

Springer,  Everett,  in  re  claim  of,  Op.  Sol.  (1915)  267 411 

Springer  v.  Lewis,  22  Pa.  191,  193 36 

Staley,  Admrx.,  etc.,  v.  Illinois  Central  R.  R.  Co.,  268  111.  356,  109 

N.  E.  342,  L.  R.  A.  1916A  450 .'37,  38 

Standard  Accident  Ins.  Co.  v.  Sponatski,  220  Mass.  526,  108  N.  E. 

466,  L.  R.  A.  1916A  333,  8  N.  C.  C.  A.  1025 110 

State  v.  Bridgman,  94  N.  C.  888 422 

State1  v.  Business  Property  Co.,  87  Wash.  627,  152  Pac.  334. .  13 


TABLE   OF   CASES  485 

Page 
State  v.  District  Court  of  Meeker  County,  128  Minn.  221,  150  N. 

W.  623   137,  275,  334 

State  v.  District  Court  of  Ramsey  Co.,  153  N.  W.  119,  129  Minn. 

502,  L.  R.  A.  1916A  344,  9  N.  C.  C.  A.  129 138 

State  v.  District  Court  of  Ramsey  Co.,  156  N.  W.  120  (Minn.) 289 

State  v.  District  Court  of  Sibley  County,  151  N.  -W.  182,  128  Minn. 

486    183 

State  v.  Speyer,  207  Mo.  540,  106  S.  W.  505,  14  L.  R.  A.  (N.  S.)  836.  319 
State  v.  District  Court  of  St.  Louis  Co.,  128  Minn.  43,  150  N.  W.  211  333 
State  v.  District  Court  of  St.  Louis  Co.,  151  N.  W.  912,  129  Minn. 

176    137 

State  v.   District  Court  of  St.   Louis  Co.,  129  Minn.  423,  152  N. 

W.  838  284,  317 

State  v.  Mountain  Timber  Co.,  75  Wash.  581,  135  Pac.  645,  4  N.  C. 

C.  A.  811 336 

State  ex  rel  Anseth  v.  District  Court  (Minn.),  158  N.  W.  713 304 

State  ex  rel  City  of  Duluth  v.  Dist.  Court  of  St.  Louis  Co.  et  al., 

-  Minn.  — ,  158  N.  W.  791 19 

State  ex  rel  Crookston  Lumber  Co.  v.  District  Court  of  Beltrami 

County,  131  Minn.  27,  154  N.  W.  509 198,  199 

State  ex  rel  Davis-Smith  Co.'  v.  Clausen,  65  Wash.  156,  37  L.  R. 

A.  (N.  S.)  466,  117  Pac.  1101,  2  N.  C.  C.  A.  823,  3  N.  C.  C.  A. 

599    336,  365 

State  ex  rel  Duluth  Brewing  &  Malting  Co.  v.  District  Ct.,  129 

Minn.  176,  151  N.  W.  912 92,  124 

State  ex  pel  Duluth  Diamond  Drilling  Co.  v.  Dist.  Ct.,  129  Minn. 

423,  152  N.  W.  838,  9  N.  C.  C.  A.  1119 250,  296,  298 

State  ex  rel  Garwin  v.  District  Court  of  Cass  Co.  et  al.,  129  Minn. 

156,  151  N.  W.  810,  8  N.  C.  C.  A.  1052 149 

State  of  Washington  ex  rel  Jarvis  v.  Daggett  et  al.,  —  Wash.  — , 

151  Pac.  648,  L.  R.  A.  1916A  446 38 

State  ex  rel  Kennedy  et  al.  v.  District  Court  of  Clay  County  et  al., 

129  Minn.  91,  151  N.  W.  930,  8  N.  C.  C.  A.  478 161,  164 

State  ex  rel  Munding  v.  Industrial  Comm 202 

State  ex  rel  Nelson-Spelliscy  Co.  v.  District  Court,  128  Minn.  221, 

150  N.  W.  623 334 

State  ex  rel  Northfleld  v.  Dist.  Ct.,  131  Minn.  352,  155  N.  W.  103..  251 
State  ex  rel  People's  Coal  and  Ice  Co.  v.  District  Court  of  Ramsey 

County  et  al.,  129  Minn.  502,  153  N.  W.  119,  L.  R.  A.  1916A  344.   110 

State  ex  rel  Pratt  v.  Seattle.  73  Wash.  396,  132  Pac.  45 336 

State  ex  rel  Splady  v.  Dist.  Ct.,  128  Minn.  338,  151  N.  W.  123,  L. 

R.  A.  1916A  249   (note) .  .  198 


486  MANUAL  OF  COMPENSATION   LAW 

Page 
State  ex  rel  Virginia  and  Rainy  Lake  Co.  v.  Dist.  Ct.  of  St.  Louis 

County  et  al.,  128  Minn.  43,  150  N.  W.  211,  7  N.  C.  C.  A.  1076.9,  23 
State  ex  rel  Yaple  v.  Creamer,  85  Ohio  St.  349,  39  L.  R.  A.  (N.  S.) 

694,  97  N.  E.  602,  1  N.  C.  C.  A.  30 48,  335,  357 

Stavely  Coal  &  I.  Co.  v.  Elson,  5  B.  W.  C.  C.  301 299 

Steers  v.  Dunnewaldr  85  N.  J.  L.  449,  89  Atl.  1007,  4  N.  C.  C.  A. 

676,  L.  R.  A.  1916A  231 '. 88,  90 

Stephens  v.  Clark,  2  Cal.  Ind.  Ace.  Comm.  135,  11  N.  C.  C.  A. 

(note)  716 312 

Stertz  v.  Industrial  Ins.  Commission,  91  Wash.  588,  158  Pac.  256, 

263  377 

Stetz  v.  F.  Mayer  Boot  &  Shoe  Co.  (Wis.),  156  N.  W.  971 .  .56,  298 

Stevens  v.  Insoles,  Ltd.,  W.  C.  Rep.  Ill  (Eng.) 249 

Stevenson  v.  Illinois  Watch  Co.,  186  111.  App.  418,  5  N.  C.  C.  A.  858.  178 

Stinton  v.  Brandon  Gas  Co.,  Ltd.,  W.  C.  Rep.  132  (Eng.) 248 

Stith,  in  re,  Ohio  In'd.  Comm.  No.  24574,  11  N.  C.  C.  A.  180...'...  76 
St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor,  210  U.  S.  281,  295,  52  L.  ed. 

1061,  1068,  28  Sup.  Ct.  Rep.  616,  21  Am.  Neg.  Rep.  464 344 

St.  Louis  Southwestern  R.  Co.  v.  Arkansas,'  235  U.  S.  350,  362,  59 

L.  ed.  265,  271,  35  Sup.  Ct.  Rep.  99 374 

St.  Louis  &  S.  F.  R.  Co.  v.  Mathews,  165  U.  S.  1,  22,  41  L.  ed.  611, 

619,  17  Sup.  Ct.  Rep.  243 351 

Stockard  v.  Morgan,  185  U.  S.  27,  36,  46  L.  ed.  785,  794,  22  Sup. 

Ct.  Rep.  576 374 

Stockwell  v.  Waymire,  1  Cal.  Ind.  Ace.  Comm.  Dec.  2,  6  N.  C.  C. 

A.  (note)  624  243 

Stoll  v.  Ocean  Shore  R.  Co.,  2  Cal.  Ind.  Ace.  Comm.  Dec.  81  (1915), 

9  N.  C.  C.  A.  908 259 

Stoll  v.  Pac.  Coast  Steamship  Co.,  205  Fed.  169,  3  N.  C.  C.  A. 

606 41,  336 

Stopyra  v.  U.  S.  Coal  Co.,  Vol.  1  No.  7,  Bui.  Ohio,  Indus.  Com.,  p. 

92  265 

Striegel  v.  Am.  Radiator  Co.,  111.  Ind.  Bd.  Dec.,  May  6,  1915 249 

Strom  v.  Postal  Telegraph-Cable  Co.,  271  111.  514,  111  N.  E.  555. .  47 
Sturges  &  Burn  Manufacturing  Co.  v.  Beauchamp,  34  Sup.  Ct.  Rep. 

60  59 

Sturgis  v.  Boyer,  24  Howard  123 402 

Suleman  v.  The  Ben  Lomond,  2  B.  W.  C.  C.  499 313 

Sullivan  v.  American  Mutual"  Liability  Insurance  Co.,  218  Mass. 

141,  105  N.  E.  463,  L.  R.  A.  1916A  378,  5  N.  C.  C.  A.  146,  148 735 

Sweeney  v.  Pumpherston  Oil  Co.,  Ltd.,  40  Sc.  L.  R.  721,  6  N.  C.  C. 

A.   683    (note)    239 


TABLE   OF  CASES  487 

Page 

Symonds  v.  Kins;,  8  B.  W.  C.  C.  189 95 

Synkus  v.  Big  Muddy  Coal  &  Iron  Co.,  190  111.  App.  602..  44 


T 

Tank  v.  City  of  Milwaukee,  Wis.  Workm.  Comp.  Rep  (1914)  80...  115 

Taylor,  Frank  E.,  in  re  claim  of,  Op.  Sol.  (1915)  542 424 

Taylor,  W.  H.,  in  re  claim  of,  Op.  Sol.  (1915)  411 418 

Taylor  et  al.  v.  Seabrook,  87  N.  J.  L.  407,  94  Atl.  399,  11  N.  C.  C. 

A.  710 271,  312 

Tenney  v.  Lenz,  16  Wis.  566 382 

Terlecki  v.  Strauss  et  al.,  85  N.  J.  L.  454,  89  Atl.  1023,  4  N.  C.  C. 

A  584 101 

Texas  &  P.  R.  Co.  v.  Rigsby,  241  U.  S.  33,  39,  43,  60  L.  ed.  874,  877, 

878,  36  Sup.  Ct.  Rep.  482 344 

Thackway  v.  Connelly  &  Sons,  3  B.  W.  C.  C.  37 280 

Thayer,  Randolph  A.,  in  re  claim  of,  Op.  Sol.  (1915)  266 411 

Thompson  v.  Ashington  Coal  Co.,  17  Times  L.  R.  345  (Eng.) 71 

Thompson  v.  Goold,  3  B.  W.  C.  C.  392,  L.  R.  A.  1916A  (note)  85.  ..  247 
Thompson  v.  Richard  Johnson  &  Nephew,  Ltd.,  7  B.  W.  C.  C.  479, 

11  N.  C.  C.  A.  (note)  678 188 

Thomson  v.  Flemington  Coal  Co.,  4  B.  W.  C.  C.  406 112 

Tirre  v.  Bush  Terminal  Co.,  172  App.  Div.  386,  158  N.  Y.  Supp.  883.  312 
Tomalin  v.  S.  Pearson  &  Son,  2  K.  B.  61,  25  Times  L.  R.  477,  2  B. 

W.  C.  C.  1  •. 325 

Trammell,  J.  V.,  in  re  claim  of,  Op.  Sol.  (1915)  244 410 

Tray  v.  Com.,  76  S.  W.  185,  25  Ky.  L.  R.  669 322 

Traynor  v.  Addie  &  Sons,  48  Scot.  L.  R.  820,  4  B.  W.  C.  C.  357. ..  136 
Trim  Joint  Dist.  School  v.  Killey,  W.  C.  &  Ins.  Rep.  359,  136  L.  T. 

J.  605,  6  N.  C.  C.  A.  1010  (note) 85 

Troth  v.  Millville  Bottle  Works,  86  N.  J.  L.  558,  91  Atl.  1031,  af- 
firmed in  98  Atl.  435  335 

Truax  v.  Raich,  239  U.  S.  33,  41,  60  L.  ed.  131,  135,  L.  R.  A.  1916D 

545,  36  Sup.  Ct.  Rep.  7 353 

Tullis  v.  Lake  Erie  &  W.  R.  Co.,  175  U.  S.  348,  44  L.  ed.  192,  20. 

Sup.  Ct.  Rep.  136 347 

Turner  v.  City  of  Santa  Cruz,  2  Cal.  Ind.  Ace.  Comm.  Dec.  991 259 

Turner  v.  Port  of  London  Authority,  6  B.  W.  C.  C.  23,  11  N.  C. 

C.  A.  797  190 

Turnquist  v.  Hannon,  219  Mass.  560,  107  N.  E.  433 309,  334 

Tuttle  v.  Embury  Martin  Lumber  Co.,  158  N.  W.  875  (Mich.) 24 

Tutton  v.  S.  S.  "Majestic,"  2  B.  W.  C.  C.  346,  6  N.  C.  C.  A.  676  (note)  237 


488  MANUAL  OF  COMPENSATION  LAW 

u 

Page 
Udell  v.  Wagner,  Peterson  &  Wilson,  2  Cal.  Ind.  Ace.  Comm.  Dec, 

113,  11  N.  C.  C.  A.  (note)  58 153 

Unger  v.  Howell,  W.  C.  &  Ins.  Rep.  58,  7  B.  W.  C.  C.  36,  9  N.  C. 

C.  A.  972 ; 257 

Uphoff  v.  Ind.  Bd.  of  111.,  Ill  N.  E.  128,  271  111.  312 35 

Upper  Forest  &  Worcester  Steel  &  Tin  Plate  Co.,  Ltd.,  v.  Gray, 

3  B.  W.  C.  C.  424,  6  N.  C.  C.  A.  679  (note) 238 

United  Colliers  v.  Simpson,  Appeal  Cases  (1909)  383 203 

United  States  v.  Kie,  26  Fed.  Cas.  781 319 

United  States  v.  Purdy,  38  Fed.  Rep.  902 442 

U.  S.  Fidelity  &  Guaranty  Co.  v.  N.  Y.  Railways  Co.,  156  N.  Y.  S. 

615,  93  Misc.  Rep.  118 309 

U.  S.  F.  &  G.  Co.  v.  Rawling,  1  Cal.  Ind.  Ace.  Comm.  Dec.  64 80 

Utieres  v.  Otto,  2  Cal.  Ind.  Ace.  Comm.  Dec.  652 145 


V 

Van  Horn  v.  People,  46  Mich.  183,  185,  186,  41  Am.  Rep.  159,  9  N. 

W.  246  382 

Vaughn  v.  American  Coal  Co.,  1  Conn.  Comp.  Dec.  617 . . . 225 

Vennen  v.  New  Dells  Lumber  Co.,  161  Wis.  370,  154  N.  W.  640, 

L.  R.  A.  1916A  273,  10  N.  C.  C.  A.  729 63,  64,  81,  412 

Verieke  v.  City  of  Grand  Rapids,  184  Mich.  474,  151  N.  W.  723 201 

Victor  Chemical  Works  v.  Industrial  Board,  274  111.  11,  113  N.  E. 

173  214,  292,  357 

Viita  v.  Dolan  (Minn.),  155  N.  W.  1077 241,  298 

Village  of  West  Salem  v.  Ind.  Com.,  162  Wis.  57,  155  N.  W.  929.  .18,  183 
Vishney  v.  Empire  Steel  &  Iron  Co.,  87  N.  J.  Law  481,  95  Atl.  143 . .  172 
Visser  v.  Michigan  Cabinet  Co.,  Mich.  Indus.  Ace.  Bd.  Bui.  No.  3 

p.  24  ; 85 

Voelz  v.  Industrial  Commission,  161  Wis.  240,  152  N.  W.  830,  L. 

R.  A.  1916A  (note)  326 83,  122,  291 

Voge  v.  Rauf  Co.,  Wis.  W.  C.  Rep.  (1914)  40,  6  N.  C.  C.  A.  679 

(note) 238 

Voorhees  v.  Smith-Schoonmaker  Co.,  86  N.  J.  L.  500,  92  Atl.  280, 

7  N.  C.  C.  A.  646  78,  80,  137 

Von  Ette,  in  re,  223  Mass.  56,  111  N.  E.  697 138,  139 

Vuji'c  v.  Youngstown  Sheet  &  Tube  Co.,  220  Fed.  390..  .  214 


TABLE   OF  CASES  489 

W 

Page 

Wagner  v.  American  Bridge  Co.,  158  N.  Y.  Supp.  1043 158,  335 

Waldman  v.  Herman,  1  Cal.  Ind.  Ace.  Comm.  82,  11  N.  C.  C.  A.  178    76 
Walker,  in  re,  215  N.  Y.  529,  109  N.  E.  604,  Ann.  Cases  1916B  87. ..  335 

Walker  v.  Mullens,  42  Ir.  Law  Times  168,  1  B.  W.  C.  C.  211 71 

Walker  v.  Sauvinet,  92  U.  S.  90,  23  L.  ed.  678. 354,  361 

Walsh,  J.  J.,  in  re  claim  of,  Op.  Sol.  (1915)  231 409 

Walsh  v.  Locke,  etc.  (Eng.),  W.  C.  Ins.  Rep.  98,  6  N.  C.  C.  A.  675.  236 
Walters  v.  Brune,  2  Cal.  Ind.  Ace.  Comm.,  Dec.  (1915)  249,  10  N. 

C.  C.  A  (note)  759 76 

Walz  v.  Holbrook,  C.  &  R.  Corp.,  170  App.  Div.  6,  155  N.  Y.  Supp. 

703 198,  200 

Warby  v.  Plaistowe,  4  B.  W.  C.  C.  67,  L.  R.  A.  1916A  (note)  161. .  235 

Ware,  Aaron,  in  re  claim  of,'  Op.  Sol.  (1915)  334 417 

Warncken  v.  R.  Moreland  &  Son,  Ltd.  (1909),  2  B.  W.  C.  C.  350, 

6  N.  C.  C.  A.  677  (note) 236,  237 

Warner  v.  Couchman,  80  L.  J.  K.  B.  526,  1  N.  C.  C.  A.  51,  5  B.  W. 

C.  C.  177   ' 114 

Waters  v.  Pekroehler  Mfg.  Co.,  187  111.  App.  548 179 

Weaver  v.  Maxwell  Motor  Co.,  186  Mich.  588,  152  N.  W.  933,  L.  R. 

A.   1916B  1276    149 

Weber  v.  American  Silk  Spinning  Co.  (R.  I.),  95  Atl.  603 169,  288 

Webb,  Walter,  in  re  claim  of,  Op.  Sol.  (1915)  336 417 

Weigand,  C.  A.,  in  re  claim  of,  Op.  Sol.  (1915)  404 : . . .  423 

Wells,  O.  P.,  in  re  claim  of,  Op.  Sol.  (1915)  515 425 

Wells  v.  Cardif  Steam  Collieries  Co.  (1909),  3  B.  W.  C.  C.  104 144 

Wendt  v.  Industrial  Ins.  Comm.  80  Wash.  Ill,  141  Pac.  311,  5  N. 

C.   C.   A.   790    13 

Werner  v.  Rising  Sun  Brewing  Co.,  37  N.  J.  L.  J.  364,  9  N.  C.  C. 

A.  (note)  648  136 

Western  Fuel  Co.  v.  Ind.  Comm.,  159  Wis.  635,  150  N.  W.  998 112 

Western  Indemnity  Co.  v.  Pillsbury  et  al.,  170  Cal.  686,  151  Pac. 

398,  10  N.  C.  C.  A.  1 85,  119,  333 

Western  Indemnity  Co.  v.  Pillsbury  et  al  (Cal.),  159  Pac.  721 24 

West  Jersey  Trust  Co.  v.  P.  R.  R.  Co.,  88  N.  J.  Law  102,  95  Atl. 

753    216,  297 

Western  Metal  Supply  Co.  v.  Pillsbury  (Cal.),  156  Pac.  491 85 

Western  U.  Teleg.  Co.  v.  Kansas,  216  U.  S.  1,  28,  30,  54  L.  ed.  355, 

366,  367,  30  Sup.  Ct.  Rep.  190 374 

Wharton,  Wm.,  in  re  claim  of,  Op.  Sol.  (1915)  315 415 

Wheeler  v.  Contoocook  Mills  Corp.,  77  N.  H.  551,  94  Atl.  265.  .46,  48,  335 
White  v.  Wiseman  (1912),  3  K.  B.  352,  359 186 


490  MANUAL  OF  COMPENSATION  LAW 

Page 
Wigmore  v.  Jay  (1850),  L.  R.  5  Exch.  354,  19  L.  J.  Exch.  N.  S.  300, 

14  Jur.  838,  841  345 

Wilhelm,  George  W.,  in  re  claim  of,  Op.  Sol.  (1915)  508 423 

Williams  v.  Choctaw  O.  &  G.  R.  Co.,  149  Fed.  104 420 

Williams  v.  Wynnstay  Collieries  Co.,  3  B.  W.  C.  C.  473 181 

Wilmington  Star  Min.  Co.  v.  Fulton,  205  U.  S.  60,  73,  51  L.  ed.  708, 

715,  27  Sup.  Ct.  Rep.  412 347 

Wilson  v.  Dorflinger,  155  N.  Y.  S.  857 14 

Wilson  v.  Laing,  46  Scot.  L.  R.  843,  2  B.  W.  C.  C.  118 107 

Winfield  v.  New  York  C.  &  H.  R.  R.  Co.,  216  N.  Y.  284,  110  N.  E. 

614,  10  N.  C.  C.  A.  916 37,  38 

Winter  v.  Atkinson,  Frizelle  Co.,  37  N.  J.  L.  J.  195,  11  N.  C.  C.  A. 

180  76 

Withy,  Charles  J.,  in  re  claim  of,  Op.  Sol.  (1915)  273 412 

Wood  v.  Camden  Iron  Works,  221  Fed.  1010 5 

Wood  v.  City  of  Detroit,  155  N.  W.  592,  L.  R.  A.  1916C  388. ... 334 

Woodcock  v.  Walker,  155  N.  Y.  S.  702,  170  App.  Div.  4 217 

Wrigley  v.  Nasnyth,  Wilson  &  Co.,  W.  C.  &  Ins.  Rep.  (1913)  145. .  107 

Y 

Yates  v.  South  Kirkby,  F.  &  H.  Collieries,  Ltd.,  2  K.  B.  538,  3  N. 

C.  C.  A.  225,  79  L.  J.  K.  B.  809 84 

Young  v.  Duncan,  218  Mass.  346,  106  N.  E.  1 334,  357 

z 

Zabriskie  v.  Erie  R.  R.  Co.,  86  N.  J.  L.  266,  92  Atl.  385,  L.  R.  A. 

1916A  315,  4  N.  C.  C.  A.  778 112 

Zappala  v.   Industrial   Commission   of  the   State  of  Washington, 

82  Wash.  314,  144  Pac.  54,  L.  R.  A.  1916A  295 80,  286 


INDEX 


Page 

ABSCESS    71 

ACCEPTANCE  OF  ACTS— 

affirmative  by  employee  usually  unnecessary 8 

defect  in  employers'  at  time  of  accident,  not  cured  by  subse- 
quent acts  of  employee  43 

elective   41-45 

employee's  ignorance  of  presumption  of  election  no  excuse..     45 

incomplete  compliance  by  employer,  effect 43 

joint  voluntary  application  for  purpose  of 60 

notice  of  effective  until  withdrawn 44 

of  two  different  States 45 

voluntary  as  to  part  of  exempted  employees 34 

where  compulsory 41 

ACCIDENT— 

aggravating  pre-existing  disease 76 

as  between,  and  suicide  presumption  favors  accident 112 

assault  as  85 

before  or  after  working  hours  or  going  to  or  from  work ....  96,  99 

blood  poisoning  as  67 

burden  of  proof  as  to 87 

death  by  suicide  while  insane  as 110 

death  resulting  from 87 

defined  65 

dependency  determined  as  of  date  of , .  195 

diseases  as,  in  general 69 

disease   without,   not   compensable 72 

due  to  intoxication  does  not  arise  out  of  employment 272 

fact  of  may  be  established  by  circumstantial  evidence 88 

going  to  lunch  or  preparing  to  go 101 

hernia  as    80 

injury  is  though  caused  by  negligence 64 

internal  rupture  as 78 

ivy    poisoning,    as 83 

lead  poisoning  is  not 73 

meaning  of  at  law  generally 62 

meaning  of  within  the  acts 63 


492  MANUAL  OF  COMPENSATION  LAW 

Page 

ACCIDENT— Continued- 
mere  conjecture  as  to  fact  of,  not  sufficient 88 

must  result  from  risk  reasonably  incident  to  employment 93 

must  occur  at  definite  time 65 

nervous  shock  as   84 

occupational  diseases  are  not 65 

on  street   94 

over-work  as   86 

question  of  law  or  fact 86 

reports  of  by  employer 318 

several  injuries  from,  creates  only  one  disability 160 

sunstroke   as    409 

though   caused   by   carelessness 64 

traumatic   injury   by 72 

tumor  of  kidneys,   caused  by 87 

typhoid  fever  from  drinking  water  furnished  by  employer  as     81 

used  in  popular  sense 63 

use  of  word   61 

unbroken  chain  of  causation  between  accident  and  disability, 

necessary    76 

where  death  resulted  from  necessary  surgical  operation 87 

where  injury  is  proximately  caused  by,  meaning  of 66,  67,  68 

when  occurs  on  premises  of  master 92,  97 

when  proceeding  to  place  of  work  under  orders  of  employer. .     98 

ACCIDENT  AND   INJURY— in  general 61 

ACCIDENT  INSURANCE — paid  for  by  employee,  no  deduction  for  314 

ACT — incomplete  compliance  with  by  employer,  effect... 43 

ACT  IN  EXCESS  OF  POWERS— finding  of  fact  without  evidence 

to  support  it  is 175 

ACT  IN   EMERGENCIES — as  arising  out  of  employment 122-124 

ACT  OF  GOD — injuries  from,  as  arising  out  of  employment 107 

ACTION— 

f<Jr  compensation  binds  minor  as  to  questions  involved 59 

proceeding  for  compensation  as 293 

ACTION  AT  LAW— 

employee  has  where  employer  has  not  properly  accepted  act. .     43 

failure  of,  does  not  bar  compensation 324 

for  damages,  as  notice  of  claim  for  compensation 260 

of  parent  for  loss  of  services  'of  minor  electing  act 57 

where  abolished    51-55 

ACTUAL  DEPENDENT— 

means  dependent  in  fact 197 

wife  abandoned  for  two  years  held  not  an 211 

ADOPTED  CHILD — as  dependent  under  federal  act 436 


INDEX  493 

Page 

ADMINISTRATOR— as  employer  7 

ADMINISTRATIVE   BOARDS— 

Board  of  Agriculture  as  employer 16 

Board  of  Park  Commissioners  as  employer 17 

Board  of  Public  Works  as  employer 18 

Fire  Warden's  Department  as  employer 16 

Highway  Commission  as  employer 16 

of  State  as  employers 16 

ADMINISTRATIVE  BOARDS  OR  COMMISSIONS — in  general 283 

ADMIRALTY  LAW— 

as  affected  by  compensation  acts 38 

remedy  under,  or  under  compensation  act 39 

whether  remedy  under,  is  taken  away  by  acts 39-40 

A  D  U  LTS — as  dependent  on  minors 203-205 

ADVANCED  AGE — when  dependents,  no  reduction  of  compensa- 
tion  for    199 

AFTER    WORKING    HOURS— accidents 96 

AFFIDAVIT— 

effect  of  false,  as  to  marriage,  to  secure  employment 10 

effect  of  false,  as  to  previous  similar  employment 10 

false,  penalty  for  making  under  federal  act 453 

AGE— 

advanced,  as  affecting  disability 153 

misrepresentation  of  by  employee 10 

misrepresentation  of  by  minor  to  obtain  prohibited  employ- 
ment      59 

when  dependents  have  no  reduction  of  compensation  for  ad- 
vanced      199 

AGRICULTURE— 

a  person  when  engaged  in 35 

defined   35 

farm   work   defined 36 

farm  laborers,  who  are 36 

includes  gardening  and  horticulture 35 

State  Board  of,  as  employer 16 

who  is  employee  in 36 

AGRICULTURAL    EMPLOYMENT— in   general 34 

AGREEMENTS,  see  SETTLEMENTS  or  RELEASES. 

AGREEMENTS,  SETTLEMENTS  or  RELEASES— in  general.   296-298 

ALIEN— 

consul  may  make  claim  for 214 

consul  may  receive  compensation  for 214 

defined   213 

husband  here  and  wife  in  Austria  as  "living  together" 207 


494  MANUAL  OF  COMPENSATION  LAW 

Page 

ALIEN    DEPENDENTS — compensation    of 212-214 

ALIMONY — as  evidence  of  dependency 210 

ALL  QUESTIONS  A R I S I N G— meaning  of 285 

ALLOWANCE— 

for  horse  hire  as  affecting  average  earnings 182 

for  use  of  automobile  as  affecting  average  earnings... 182 

AMBULANCE   MAN— of  employer,  notice  to 249 

ANKLE — injury  to  from  electrical  burn 163 

ANKYLOSIS — of  thumb  due  to  improper  treatment. 129 

ANEURISM    75 

APPENDICITIS    71 

APPEAL— 

employer  insured  in  N.  Y.  Fund  has  no 306 

in  general  304 

insurer  has  not,  on  distribution  of  payments  alone 306 

time   limit   on 304 

APPEAL  AND  REVIEW,  see  REVIEW. 
ARM— 

injuries  above  elbow,  as  injuries  to 165 

loss  of  as  affecting  ability  to  procure  work 1-16 

ARM  OR  HAND— loss  of 164 

ARREST — citizen  called  by  officer  injured  while  making 183 

ARTIFICIAL  FOOT — usefulness  of  foot  no  more  than 161 

ARTIFICIAL  LEG — breaking  of  not  personal  injury 409 

ARTIFICIAL  HEAT— 

injuries   from 113,  115 

intensified  by  heat  of  sun,  injuries  from 115,  116 

ARISING  OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT— 
see  also  IN  THE  COURSE  OF  EMPLOYMENT, 
see  also  INCIDENTAL  TO  EMPLOYMENT. 

acts  furthering  the  master's  business  as 124-127 

acts  helpful  to  master  though  outside  regular  duties  as 124 

acts  in  emergencies   as • 122-124 

acts  not  strictly  in  scope  of  employment  done  in  emergency. .     92 

acts  protecting  master's  property  as 124-127 

accidents  before  or  after  working  hours 96 

accident  due  to  intoxication  not  "out  of" 272 

accidents  going  to  or  from  work 96 

accident  must  result   from   risk   reasonably  incident  to   em- 
ployment      93 

accidents  on  master's  premises 92 

accidents  on  street  as 94 

accident  while  going  to  place  of  work  under  orders  of  master.     98 
assault  by  fellow  employee  or  third  person  as 116-121 


INDEX  495 

Page 

ARISING  OUT  OF  AND  IN  THE  COURSE  OF   EMPLOYMENT— 
Continued. 

burden  of  proof  as  to,  on  claimant 92,  138,  280 

cleaning  a  motorcycle  used  in  employer's  business  as 134 

collector  falling  down  stairway 136 

collision  with  fellow  servant  running  to  punch  time  clock....   101 
death  of  employee  by  act  of  another  contractor  on  same  build- 
ing      93 

death  or  injury  by  lightning  or  other  act  of  God  as 108-110 

disobedience  of  positive  instructions  or  enforced 

rules 127,  128,  136,  137 

disobedience  of  unenforced  rules 129 

doing  duty  in  improper  manner,  as 92 

drinking  poisonous  fluid  for  water 137 

driver  assisting  another  to  raise  fallen  horse 136 

driver  delivering  material  to  fellow  employee  as  accommoda- 
tion      136 

driver  falling  from  wagon  trying  to  recover  pipe 135 

drowning  in  effort  to  rescue  fellow  servant 135 

employee  warming  himself  between  cars  in  leisure  time  as . .  130 

eyes,  injuries  to  as •. 121 

frostbite  as  114 

fundamental  that  accident  or  injury  be  one 90 

general  illustrations  of  injuries 135 

going  from  place  of  work  to  office  of  paymaster 135 

going  to  assistance  or  rescue  of  fellow  employee  as 122-124 

hair  caught  in  machinery  at  noon  hour 101 

heat  and  cold,  injuries  from  as 113-116 

horse  play  as  105-108 

in  general   90 

injury  developed  by  medical  treatment  as 129 

injury  from  motorcycle  owned  by  employee  used  for  employer  134 

injury  going  to  lunch  or  preparing  to  go 101 

injury  on  stairs  furnishing  access  to  shop 403 

injury  seeking  refreshment 104 

injury  to  truck  driver  putting  up  horse 133 

injury  warming  lunch  in  hot  air  pipe  not 104 

injury  while  demonstrating  to  fellow  workmen  how  previous 

fall  occurred    136 

injury  while  riding  from  place  of  work  in  wagon  of  employer.  100 

injury  while  seeking  shelter  from  storm  as 132 

insanity,  injuries  caused  by  as 110-112 

lapse  of  memory,  injuries  from  as Ill 

leaving  premises  of  employer  to  get  lunch,  injury  not 104 


496  MANUAL  OF  COMPENSATION  LAW 

Page 

ARISING  OUT  OF  AND  IN  THE  COURSE  OF  EMPLOYMENT— 
Continued. 

may  be  proved  by  circumstantial  evidence 139 

meaning  90 

miner   firing    blast   against   orders 136 

miner  remaining  at  work  after  warning  of  blast 136 

miner  riding  on  car  against  orders 136 

murder  of  cashier  carrying  payroll  as 135 

must  arise  "out  of"  as  well  as  in  "course  of" 90,  91,  93,  101 

not  if  result  of  willfully  tortious  act  of  fellow  servant 93 

not  if  risk  is  common  to  all 91,  94 

not  to  be  read  "out  of"  that  is  to  say  "in  the  course  of" 101 

not  when  workman  does  something  not  part  of  duty 92 

not   when   workman   doing   something   entirely   for   his   own 

purposes 92 

primary   importance   of  question 135 

seeking  toilet  facilities  as 112 

slipping  on  ice  while  running  to  catch  street  car 95 

sportive  acts  as  105-108 

suicide  as    110-112 

sunstroke   as    115 

tortious  act  of  fellow  servant  if  incidental  to  service 93 

under  English   decisions 92 

workman  coming  from  roof  by  rope  instead  of  ladder 102 

when  duties  demand  constant  use  of  streets 95 

where   duty   not   clearly   defined,   workman   thought   he   was 

doing  duty    93 

"AS  SOON  AS  PRACTICABLE"— notice  must  be  given 255-258 

ASYLUMS — for  blind  as  employer 7 

ASSAULT— 

as  accident 85 

by  drunken  and  frenzied   workman 118 

injuries  from  as  arising  out  of  employment 116-121 

under  accident  insurance   policy 86 

willful  or  criminal,  as  accident 120 

ASSIGNMENT— 

employer  can  make,  of  claim  against  third  person 309,  310 

of  compensation  cannot  be  made 316 

of  compensation  void  under  federal  act 448 

ASSUMPTION  OF  RISK— 

at   law 346 

contractual,  employer  not  deprived  of  by  failure  to  elect  act.      16 
defense  of  not  available  to  non-electing  employer 45,  46,  47 

ASSISTANT — wages  of,  as  affecting  average  earnings 182,  183 


INDEX  497 

Page 
ATMOSPHERIC  CONDITIONS— injuries  from 113,  116 

ATTACHMENT — of  compensation  cannot  be  had 316 

ATTORNEY'S   FEES— in  general 316,  317 

AUTOMOBILE— 

allowance  for  use  of  as  affecting  average  earnings 182 

employee  struck  by  while  temporarily  off  the  premises....  417 

death  by  while  crossing  street 112 

injury  while  speeding  in  willful  misconduct 267 

turning  turtle  as  a  result  of  intoxication  of  driver 275 

AVERAGE  DAILY  EARNINGS— where  used  as  basis 180 

AVERAGE   ANNUAL    EARNINGS— where  used   as   basis 180 

AVERAGE  EARNINGS— 

monthly  pay  how  computed  under  federal  act 445 

monthly  wage  earning  capacity  under  federal  act 445 

AVERAGE  MONTHLY  EARNINGS— where  used  as  basis 180 

AVERAGE   WEEKLY    EARNINGS— 

allowance  for  use  of  automobile  as  affecting 182 

as  basis  for  compensation  in  general 180 

board  and  lodging,  when  included  in 181,  183 

eight-hour   law    as   affecting 189 

fluctuation   of   wages   as   affecting 190 

general  income  as  affecting 181 

general  strike  as  affecting 189 

grade  of  employment  as   criterion  for 184 

illness  as  affecting 190,  191 

laying  off  as  affecting 183 

meaning  of  "full  time"  in  connection  with i91 

methods   of  computing 181,   184 

method  of  computing  a  question  of  law 181 

money  from  poor  fund  as 182 

need  not  be  computed   with  microscopical   accuracy 190 

normal  stoppage  of  work  on  general  holidays  as  affecting. . . .  189 

of  casual  laborer  how  computed 185 

of  one  regularly  employed  in  higher  grade  of  work 183 

payments  of  compensation  for  previous  accident   as 182 

pension  from  government  as 182 

plumber  assisting  officer,  policeman's  wages  basis  for 183 

regulations  of  labor  unions  as  affecting 188 

seasonal   occupations   as    affecting 184 

sympathetic    strike    as    affecting 190 

tips  when  included  in 181 

value  of  horse  hire  as 182 

wages  earned  from  more  than  one  employer  as 185 


498  MANUAL  OF  COMPENSATION  LAW 

Page 

AVERAGE  WEEKLY   EARNINGS— Continued- 
wages  paid  to  assistant,  as  affecting 182,  183 

what   are,    a   question   of   fact 181 

AVERAGE  WEEKLY  WAGES— 

and  "full  time"  meaning  of  in  Kentucky 191 

how  generally  computed 181 

in    general    180 

AWARD— 

agreement  becomes,  when  approved 297 

as  vested  interest ' 201 

based  on  fright  without  injury  will  not  stand 85 

cannot  be  based  on  hearsay  evidence  alone 290 

cannot  be  based  on  mere  conjecture  or  surmise 290 

federal  commission  may  make 453 

federal  commission  may  review  previous  orders  or 453 

made   entirely   without   evidence   improper 292 

not  good  if  compensation   could  be  denied  or  granted  with 

equal  consistency   291 

verdict  of  jury  cannot  be  treated  as 54 

will  stand  if  it  has  any  basis  in  the  competent  evidence.  .290,  291 

B 

BANDAGES — injuries  from  accidentally  setting  fire  to 414 

BEFORE   OR   AFTER    WORKING    HOURS— accidents 96 

BICYCLE — injuries  from  use  of  for  employee's  convenience  only. .  134 

BIGAMY — as  affecting  dependency 212 

BLIND    MAN— injury   to 7 

BLOOD    POISONING— as    accident 67 

BOARD  AND   LODGING— 

free  as  deduction  from  compensation . . ., 313 

when  included  in  average  earnings 181,  183 

BOARD,   LODGING   AND   CLOTHING— as   wages 8 

BOARDS  OR  COMMISSIONS— 

are  not  courts 283,  293 

can  determine  all  questions  arising  under  act 285 

can   review   their  own   decisions " 283 

federal,  may  award  or  refuse   compensation 453 

federal,   organization,   powers   of 450 

formed  to  do  away  with  delays  of  court 283 

may  make  rules 286 

members  of,  are  not  judicial  officers 283 

powers    of    283 

procedure   before 284 

right  of  to  hear  evidence .  292 


INDEX  499 

Page 

BOOKKEEPER— 

notice  to,  by  mother  of  employee 249 

notice  to,  by  wife  of  employee 249 

BOXING  MATCH— 

aggravation  of  old  injury  by 68 

injured  employee  engaging  in,  contrary  to  physician's  orders  238 

BRASS    POISONING — superinducing  tuberculosis 412 

BRONCHITIS — acute,  from  inhalation   of  gas   fumes 411 

BROTHER,   see    DEPENDENTS. 

BURDEN  OF  PROOF— 

see  also  EVIDENCE. 

as  to  accident 87 

as  to  accident  arising  out  of  and  in  course  of  employment. .   280 

as  to  arising  out  of  and  in  the  course  of  employment 138 

as  to  incapacity  for  work 148 

as  to  relation  of  employer  and  employee 280 

as   to   self-inflicted   injury 265 

as   to  willful  misconduct  on  employer 280 

of  dependency  is  on  widow 197 

of  facts  necessary  to  claim  on  claimant 291 

of  unreasonableness  of  employee's  refusal  to  submit  to  oper- 
ation     237 

on  dependent  that  death  resulted  from  injury. 295 

on   employee   to   show   employer  not   prejudiced   by   delayed 

notice    257 

that  employment  was  not  casual  is  on  widow 197 

BURIAL  EXPENSES— 

in    general    312 

under   federal   act 444 

BUTCH  ER — in  hotel  not  in  hazardous  employment 13 

BUTCHER'S — employee,  engaged  in  hazardous  employment 13 

c 

CARDIAC  HYPERTROPHY— from  breathing  fumes  of  ether 411 

CARELESSNESS — injury  caused  by,  within  acts 64 

CASUAL   EMPLOYMENT— 

acts  outside  line  of  duty  under  orders  of  superior  are  not. ...  30 

a  definition  of 26 

and  not  in  the  usual  course  of  trade,  business,  profession  or 

occupation    33 

a  question  of  fact 26 

burden  on  dependent  widow  to  prove  that  employment  was 

not    197 

employment  for  indefinite  period  is  not 29 


500  MANUAL  OF  COMPENSATION  LAW 

Page 

CASUAL  EMPLOYMENT— Continued- 
employment  for  one  occasion  is 27 

"employment  of  a  casual  nature" 30 

English  and  American   acts   distinguished   as   to 31 

failure  to  stipulate  wages  does   not  make 29 

how  average  earnings  are  computed  in 185 

in    general 25 

intermittent    employment    may    be : 28 

longshoreman  as  not  engaged  in 28 

teamster  delivering  coal  for  dealer  as  engaged  in 28 

tests  as  to  whether  employment  is 26 

waiter  for  caterer  as  engaged  in 27 

CAUSATION — there  must  be  unbroken  chain  of  between  accident 

and    disability 76 

CAUSATIVE  DANGER — must  be  peculiar  to  work  not  common  to 

neighborhood    91 

CELLULITIS — of   joints    of    finger 167 

CHAIN    OF    CAUSATION— 

not  broken  when  injury  results   from  improper  treatment. .  130 
when  broken 295 

CHANGE  OF  CONDITIONS— settlement  may  be  set  aside  for 297 

CHARITABLE    INSTITUTIONS— as    employers 7 

CHAUFFEUR — injury   to    cranking   automobile 129 

CHILD  OR  CHILDREN — includes  illegitimates  under  federal  act.  .  435 

CHILDREN— 

adopted,   as   dependents   under  federal   act 436 

illegitimate,  under  federal  act 432,   436 

posthumous,  under  federal  act 433 

CIRCUMSTANTIAL  EVIDENCE— 

see  also  EVIDENCE, 
accident  may  be  established   by 88 

CITY — as   employer  of  contractor's   workmen 5 

CLAIMS  FOR  INJURIES— 

see  also  NOTICE  OF  INJURIES. 

action  at  law  as 260 

by  disinterested   persons   in   behalf  of  others 246-248 

brother-in-law  may  make  for  benefit  of  non-resident  sister. .  247 

employee  has  reasonable  time  to  give  notice  of 245 

employee  or  someone  for  him  must  give  notice  of 245 

father  may  make  for  unmarried  son 247 

federal   act,   how   made   under 446 

form  of  notice   of 246 

limitation,  ignorance  of  not  excusable  mistake  for  failure  to 

make     .   259 


INDEX  501 

Page 

CLAIMS  FOR   INJURIES— Continued- 
limitation   on .« 259 

made  four  months  after  injury  too  late 257 

manner  of  giving  notice  of,  when  sufficient 248 

may  be  made   by  attorney  at  direction  of  brother  of  alien 

widow    248 

may  be  made  by  any  person  entitled  to  compensation 247 

"mislead  to  his  injury"  when  employer  is 255-258 

mistake  or  other  reasonable  cause  for  failure  to  make. ..  .251-255 

need  not  be  made  for  definite  sum 247 

notice  of,  to  corporation 248 

notice  of,  to  one  partner  sufficient 248 

penalty  for  making  false,  under  federal  act 453 

purpose  of  requiring  notice  of 245 

when  employer  has  knowledge  of  injury 249 

when  employer  not  prejudiced  by  delay  in  making 258 

who   may   make 246 

COAL    MINING — as   seasonal   occupation 184 

COLD — injuries    from 113-116 

COLLECTOR — injuries  to,  falling  down  stairway 136 

COMMERCE,  INTER-STATE,  see  INTER-STATE  COMMERCE. 

COMMISSIONS,  see   BOARDS   OR   COMMISSIONS. 

COMMONALITY— 

see  also  RISK  COMMON  TO  ALL. 
risks  of,  not  covered 91,  94 

COMMON   LAW — relations  of  master  and  servant  to  which  acts 

apply    5 

COMMON    LAW  ACTIONS— when  abolished 51-55 

COMMON   LAW   DEFENSES— 

abrogation  of,  not  violative  of  "due  process"  of  law 47,  48 

allowed  to  certain  employers  while  denied  to  others  not  un- 
constitutional          48 

legislature  has  power  to  abolish 46 

no  person  has  property  or  vested  interest  in 48 

not  available  to  non-electing  employer 45,  46,  47 

removal  of,  does  not  create  liability  without  negligence 47 

removal   of   not   unconstitutional 47,   48 

COMMON   LAW   MARRIAGE — as  affecting  dependency 212 

COMMUNITY  RISKS,  see  RISK  COMMON  TO  ALL. 

COMPENSATION   ACTS— as  applied  to  employees  in  interstate 

commerce    37 

COMPENSATION     BOARDS    OR    COMMISSIONS,    see    BOARDS    OR 
COMMISSIONS. 


502  MANUAL  OF  COMPENSATION  LAW 

Page 
COMPENSATION— 

see  also  SCHEDULED  INJURIES, 
see  also  DISABILITY. 

admiralty  law  in  relation  to ; 38 

average  earnings  as  basis  of 180 

award  of  as  vested  interest 201 

claim  for,  act  sets  up  two  rights  of,  one  to  employee,  one  to 

dependent    215 

claims  for,  by  minor,  collusiveness  of 58 

claims  for,  cannot  be  assigned  or  attached 316 

claim  for,  elements  of  differ  from  claim  for  damages  at  law    54 

compulsory  allowable 351,  354 

deductions  from , 313,   314 

development  of  federal  legislation  regarding.. 388 

exempt  from  creditors  under  federal  act 448 

extraterritorial  effect  of  acts 325 

forfeiture  of  part  of  when 270 

for  partial   disability  based  on   difference   between  earnings 

before   and   after  accident 174 

in  addition  to  all  other  compensation 157,  171 

"in  addition  to  all  other  compensation"  construed 157,  171 

in  lieu  of  all  other  compensation 158 

manner  of  securing  payment  of 354 

maximum  and  minimum  under  federal  act 427 

not  barred  by  failure  of  action  at  law 324 

not  intended  for  profit  of  employee  or  punishment  of  em- 
ployer       162 

of  children  with  surviving  parent,  to  whom  paid  under  fed- 
eral   act    437 

of  dependents  under  federal  act 429,  430,  431 

payments   for  previous   accident   as   affecting  average   earn- 
ings      182 

payments  of,  to  one  dependent  for  benefit  of  all 217 

payment  to  supposed  dependents 219 

proof  necessary  to  liability  for 295 

reduction  of  for  disobedience  of  rules 268 

right  of  is  prior  lien 315 

scheduled,  medical  treatment  in  addition  to 168 

scheme  of 349,   350 

sick  leaves  added  to  under  federal  act 428 

statute  must  be  followed  in  allowing 163 

total  forfeiture  of  when 270 

to  whom  in  case  of  death  under  federal  act. .  .  429 


INDEX  503 

Page 
COMPULSORY  COMPENSATION— not  violative  of  "due  process 

of   law"    amendment 351,   354 

CONCURRENT  DISABILITY— from  different  injuries 160,  163 

CONFLICT  OF  LAWS— 

notes    on 326 

see   extraterritorial   effect  of  laws 325 

CONJECTURE — accident  cannot  be  established  by 88 

CONSTITUTIONALITY   OF  ACTS— 

assumption  of  risk  doctrine  as  affecting 316 

citations   to   state   decisions   concerning 333-336 

common  law  rules  may  be  modified  by  legislation  in  public 

interest 344 

compulsory    compensation    allowable 351,    354 

compulsory  state  fund  monopoly • 364 

contributory  negligence  doctrine  as  affecting. .  T 346 

death  by  wrongful  act  recovery  for,  is  modern. 346 

denial  of  common  law  defenses  is  not  denial  of  "due  process"  359 

denial  of  jury  trial  not  inconsistent  with  "due  process" 354 

due   process    of   law 347 

elective  law 356-364 

exemption  of  some  employments  not  denial  of  equal  protection 

of    laws 354 

fellow  servant  doctrine  as  affecting 345 

intended  as  just  settlement  of  difficult  problem 348 

Iowa  act  in  U.  S.  Supreme  Court 356-364 

laws  bear  close  relation  to  protection  of  lives  and  safety  of 

citizens    354 

liability  may  be  imposed  irrespective  of  negligence 344 

liability  without  fault  not  a  novelty  in  law 350,  351 

manner  of  securing  payment  of  compensation 354 

New  York  act  in  U.  S.  Supreme  Court 336-356 

no  person  has  a  vested  interest  in  any  rule  of  law 344 

no  denial  of  due  process  in  provisions  for  adjustments 366 

not  valid  against  employers  if  not  against  employees 371 

police  power  of  a  state  is  as  broad  and  plenary  as  its  taxing 

power   375 

procedural  provisions  not  inconsistent  with  "due  process"..  354 
provision  punishing  employer  for  requesting  rejection  allow- 
able      359 

scheme  of  compensation 349,   350 

state  cannot  set  aside  common  law  as  to  master  and  servant 

without   substitute 347 

removal   of  common  law  defenses   is   not   duress   to  compel 

election    .  .  358 


504  MANUAL  OF  COMPENSATION  LAW 

Page 
CONSTITUTIONALITY  OF  ACTS— Continued— 

respondeat  Superior  at  law 344,  351 

restriction  of  freedom  of    contract    justifiable    under    police 

power    352,   353 

right  of  trial  by  jury  in  Seventh  Amendment  does  not  refer 

to  state  courts 372 

Washington  act  does  not  deny  Republican  form   of  govern- 
ment     ". 371 

Washington  act  does  not  violate  "due  process"  and  "equal  pro- 
tection" clauses 372,  382 

Washington  Act  in  U.  S.  Supreme  Court 364-383 

CONTRACT— 

of  acceptance  of  act,  minor  can  make 56 

of  employment,  employee  must  show 8 

of  employment,  kind  which  will  justify  existence  of  relation 

of  employer  and  employee 10 

of    employment    necessary 4,    8 

CONTRACTING  OUT — of  statute,  in  general 315 

CONTRACTOR— 

as  agent  for  town  in  employing  men 17 

employee  of  one  injuring  employee  of  another  on  same  build- 
ing          93 

federal  employee  working  for,  is  under  federal  act 403 

government,  employees  of  not  covered  by  federal  act 401 

CONTRACTORS  AND  SUB-CONTRACTORS— relation  of 2-1 

CONTRIBUTORY   NEGLIGENCE— 

at  law    346 

defense  of  not  available  to  non-electing  employer 45,  46,  47 

distinguished    from    willful    misconduct 270 

CONTROL — of  loaned  employee  when  retained  or  surrendered..       5 

CONSTRUCTION    OF  ACTS— theory  of 333 

CORONER'S    INQUEST— findings    as    evidence 292 

CORPORATION — what    is    notice    to 248 

CORPORATE   AGENT — knowledge  of,  as  to  accident,  is  knowl- 
edge of  city 250 

COUNTY— 

as  employer 17 

when  liable  for  a  tort  at  law 15 

COURTS— 

boards  or  commissions  are  not 283,  293 

inferior  some  acts  administered  by 283 

review  by .  305 


INDEX  505 

D 

Page 

DAMAGES — elements   entering  into   claim   for  differ  from   com- 
pensation         54 

DAUGHTER,  see  DEPENDENTS. 

DEATH— 

by  automobile  while   crossing   street   to   toilet..- 112 

by  fall   from   a   scaffold 127 

by  iron  bar  falling  by  act  of  other  contractor  on  same  build- 
ing         93 

by  runaway  horse 5 

by  train  on  way  to   work 98 

compensation  for  scheduled  injuries  in  addition  to  that  for...  171 

compensation  for,  to  whom  under  federal  act 429 

employee  seeking  fresh  air  falling  from  roof 129 

from  being  caught  in  belt 124 

from  electric  shock  while  turning  on  a  switch 12 

from  fall  in  elevator  shaft 11,  13 

from   murder 116 

from    scalding 122 

from  sewer  £ave-in 123 

from  sportive  act  of  fellow   servant... 106 

motorman  by  automobile  while  on  way  to  have  watch  tested    99 

of  painter  falling  from  rigging  furnished  by  himself 21 

of  plumber  while  assisting  village  marshal  in  arrest 18,  183 

of  section  hand  by  stroke  of  lightning 108 

section  hand  killed  by  train 104 

workman  coming  from  roof  by  rope  instead  of  ladder 102 

DEATH   RESULTING   FROM   ACCIDENTAL   INJURY 87 

DEATH   RESULTING  FROM   INJURY— 

in    general 295 

suicide  while  insane  from  effects  of  injury  as Ill 

DEDUCTIONS— 

from  compensation  in  general 313,  311 

for  accident  insurance   carried  by  employee 314 

for  explosives  furnished  miner 314 

for  free  board  and  lodging 313 

for  free   house   rent 313 

for  hospital  treatment  beyond  requirements  of  act 313 

for  imprisonment  of  workman 313 

for  previous  over  payments  of  compensation 314 

for  wages  after  return  to  work  but  before  award..  .  314 


506  MANUAL  OF  COMPENSATION  LAW 

Page 
DEFENSES— 

see  also  COMMON   LAW  DEFENSES. 

common  law,  not  available  to 'non-electing  employer. ..  .45,  46,  47 
contractual  assumption  of  risk  not  removed  from  non-electing 

employer    46 

contributory  negligence  is  not  defense  to  compensation 133 

of  electing  employer  against  non-electing  employee 262 

of  non-electing  employer  at  common  law 261 

DEFENSES  TO  COMPENSATION— 

accident  or  injury  must  arise  out  of  and  in  course  of  em- 
ployment      263 

burden  of  proof 280 

failure  to  give  notice  of  injury 264 

failure  to  use  rubber  gloves  by  lineman  as  willful  misconduct  267 

intoxication  of  workman 272 

limitations 264 

malingering  as    277 

must  be  accident  or  injury 263 

reduction  or  forfeiture,  for  disobedience  of  rules...., 268 

refusal  to  accept  employment 263 

refusal  to  allow  physical  examination 26 1 

refusal  to  submit  to  surgical  operation  or  follow  medical  ad- 
vice       264 

relation  of  employer  and  employee  must  exist 263 

speeding   in   automobile   as   willful   misconduct 267 

willful  misconduct    265-268 

willful  misconduct  is  a  jurisdictional  question 267 

willful    negligence    of    employee 271 

willful  self-inflicted  injury 265 

willful  violation  of  known  rule  as  willful  misconduct 268 

DEFINITIONS— of  terms  used  in  federal  act 454 

DELIRIUM — further  injuries  caused  by  acts  in 239 

DELIBERATE    INTENTION — of  employer  to  produce   injury 318 

DEPARTMENT — of   business   hazardous   although   principal   business 

not   hazardous 12 

DEPENDENCY— 

a  question  of  fact 193,  195 

a  question  of  fact  under  federal  act 439 

burden  of  proving  is  on  dependent 197 

class  and  position  in  life,  as  affecting 194,  195 

defined     194 

effect  of  imprisonment    of  injured    workman    on    dependent 

children    214 

findings  of  fact  as  to,  reviewable  only  as  to  standard  applied  195 


INDEX  507 

Page 

DEPENDENCY— Continued- 
inheritance  from  employee's  estate  held  not  to  affect 198 

marriage    as    affecting 212 

not   for   necessaries   alone 194 

partial,  though  contributions  are  irregular  in  time  and  amount  195 

presumption   of   total,    when 197 

test  of   194 

to  be  determined  as  of  date  of  accident 195 

what  is,  under  federal  act 440 

when  not  conclusively  presumed  a  question  of  fact 195 

DEPENDENTS— 

actual    defined 196,    197 

actual,   means   dependents   in   fact 197 

actual,  wife  abandoned  for  two  years  held  not 211 

adopted  child  as,  under  federal  act 436 

adults    as    dependents    on    minors 203-205 

alien    212-214 

alien   mother   and   sister   wholly 213 

alien  wife  and  son  as 21 1 

alimony  as   evidence  of  dependency 210 

award  of  wholly  dependent  person  as  vested  interest 201 

burden  of  proof  that  death  resulted  from  injury  on 295 

dependency   in   general    193 

distribution  between  orphan  minor 306 

divorced  woman  as  under  federal  act 434 

examples   of   under   federal   act 439-444 

father  able  to  save  after  supporting  wife  not  dependent  on 

son 198 

finding  that  mother  was  dependent  held  conclusive  on  appeal  196 

foster  parent  by  adoption  may  be 43S 

husband  and  wife;  parent  and  child,  when  presumed  to  be..  205 

illegitimate  children  as,  under  federal  act 435 

infant  not  affected  by  release  of  father  and  mother ; . . .  216 

invalid  daughter  as  dependent  on  father 198 

invalid  parents,  who  own  home,  cared  for  by  married  daugh- 
ter,   on    son 198 

"living  together,"  husband  here  and  wife  in  Austria  as 207 

living  together,"  husband  in  Boston,  wife  in  Nova  Scotia  are 

not    207 

"living  together"  of  husband  and  wife,  meaning 205-212 

marriage  of,  defeats  compensation 214 

marriage  of — effect 212 

mother  and  sister,  whether  wholly  dependent  question  of  fact  196 


508  MANUAL  OF  COMPENSATION  LAW 

Page 
DEPENDENTS— Continued— 

^need  not  be  wholly  supported  by  employee  to  be  totally  de- 
pendent   198 

non-dependent  heirs  when  entitled  to  compensation 202,  203 

non-resident  widow  of  alien  workman  as 214 

partly,  although  money  not  paid  direct  to  claimant 200 

parents,  brothers  and  sisters,  whether  dependent,  question  of 

fact 196 

partly,  divorced  mother  on  son 200 

partly,  half  brother  not  entitled  to  compensation  as  against 

father   200 

partly,  mother's   advancing  age  as  affecting 200 

partly,  mother  on  son  who  gave  in  wages  and  received  money 

back  for  expenses 200 

partly,  school  girl  sister  on  brother  who  contributed  generally  200 

.  partly,    sister    on    brother 200 

payments  to  one  for  benefit  of  all 217 

payments  to  supposed 219 

probable  wage  increase  of  minor  as  affecting  amount  to  be 

paid  to    : 205 

reduction  of  compensation  for  advanced  age  does  not  apply 

when   there   are   surviving 199 

release  by  employee,  effect  on  rights  of 215 

stepmother  and  daughter,  payments  as  between 219 

surviving    dependent    parent 218 

test  of  dependency 194 

unlawful  wife  is  not 212 

wtyen  husband  and  wife  live  apart 205-212 

when  entitled  to  full  compensation  besides  that  of  workman 

for    scheduled   injury 171 

when  partly   dependent 199 

when   wholly   dependent 197 

who  are  under  federal  act 429,  430,  431 

wholly,  daughter  on  father 198 

wholly,  father  with  large  family  on  minor  son 203 

wholly,  fifteen-year-old  sister  on  a  brother,  father  alive  but 

ill     198 

wholly,  mother  and  brother  on  son 199 

wholly,  mother  and  sister  on  son 198 

wholly,  mother  with  seven  young  children  on  grown  son,  hus- 
band  alive    198 

wholly,  widow  living  with  children  held  not  dependent  on  son  199 

'wholly,  widowed  mother  on  son .  198 


INDEX  509 

Page 

DEPENDENTS— Continued— 

wholly,  widow  on  son  who  supported  her  partly  by  yield  of 

land,  partly  by  wages 199 

widow  and  father  as  dependent  on  son 196,  197 

widow  of  employee  under  federal  act 432 

wife  by  common  law  marriage  valid  where  made  is 212 

wife  living  apart  from  husband  for  justifiable  cause 210 

wife   voluntarily  abandoning  husband   to   become   teacher  is 

not     211 

woman  living  in  bigamy  without  her  knowledge  held  to  be . .  212 

DISABILITY— 

advanced  age  as  affecting - 153 

compensation  ceases  when  disability  ends,  except  scheduled  161 

compensation  law  speaks  in  terms  of 160 

concurrent  from  different  injuries 160 

days  of  need  not  be  consecutive 425 

due  to  slackening  up  of  business 145 

extent  of  permanent  partial  not  scheduled  is  question  of  fact  158 

factors   in   earning   ability 143 

failing  health  as  affecting  total 153 

for  particular  work  not  total 154 

impairment  of  member  not  loss 158 

inability  to  procure  work  as 146 

incapacity  for  work  as 148 

in  general   141 

injuries   other  than  those   scheduled 158 

kinds    of   defined ,143 

loss  of  second  eye  where  first  was  lost  previously  as  total . .  149 
loss  of  second  hand  where  first  was  lost  previously  as  total. .  151 

nervous  or  hysterical  condition  as 144 

pain  as  cause  of  temporary  total 145 

partial,  compensation  for  under  federal  act 426 

permanent  partial    157 

permanent  partial,  defined 143 

permanent   total,    defined * 143 

permanent    total    : 147 

question  of  fact  whether  there  is  temporary  partial 147 

scheduled  injuries   » 158 

scheduled  must  be  compensated    for    regardless    of    earning 

power   160 

slipping  of  broken  bone  after  setting  is  not 145 

temporary  as  distinguished  from  permanent 172 

temporary   partial    147 

temporary  partial,  defined U3 


510  MANUAL  OF  COMPENSATION  LAW 

Page 

DISABILITY— Continued- 
temporary  total 144 

temporary  total,  defined 143 

temporary  with  or  permanent  without  operation 176 

total,  compensation  for  under  federal  act 426 

waiting   period    142 

DISEASES— 

abscess  following  fracture 71 

acute  bronchitis  and  lead  poisoning  from  gas  fumes 411 

accident  exposing  employee  to  infections 409 

aneurism    75 

ankylosis  of  thumb  from  abscess  due  to  improper  treatment. .  129 

appendicitis  and  peritonitis  after  severe  shaking 71 

cardiac  hypertrophy  from  breathing  fumes  of  ether 411 

cellulitis  of  joints  of  finger 167 

delerium  acts  done  in 239 

dizziness   produced  by 70 

epilepsy  after  injury  to  skull 71 

erysipelas  after  injury  to  foot 71 

femoral  hernia,  refusal  to  be  operated  on 241 

generally  when  compensable 69 

glanders    74 

gonorrheal  infection   121 

heart  disease  under  English  Act 74 

hernia   80,  81 

hysterical   blindness    and   neurosis 84 

hysteria  causing  paralysis  of  arm 280 

*diopathic  and  traumatic  distinguished 410 

infection  of  hand  with  secondary  infection  of  leg 409 

internal  rupture 78 

lead    poisoning    73-74 

lighted  up   by  injury 410 

loss  of  eye  by  gonorrheal  infection  caused  by  rubbing 177 

miliary  tuberculosis  held  caused  by  gas  explosion 70 

nervous    shock    . . . .' 84 

neurotic  condition 69 

occupational,  Massachusetts  View 74 

occupational,   Michigan,  View    73 

paralysis 70 

paralysis,   paresis   and   insanity 70 

peritonitis  followed  by  pneumonia 240 

peritonitis   from  operation , 240 

pneumonia  caused  by  strain 71 

post-operative  or  ether  pneumonia 87 


INDEX  511 

Page 

DISEASES— Continued- 
pre-existing,  injury  aggravating 76 

ptomaine  poisoning  from  sewer  gas 72 

pulmonary  tuberculosis    . . .  T 70 

rupture  resulting  from  cancer 79 

septicaemia    70-71 

severe   cold   resulting  in   pneumonia 408 

sunstroke  is  not 409 

tetanus  or  lockjaw  from  stepping  on  nail 71 

tuberculosis  acute  and  active 77 

tuberculosis  of  glands  from  slight  blow  on  jaw 408 

tuberculosis   superinduced   by   brass   poisoning 412 

typhoid  fever  followed  by  pneumonia  and  empyema  from  con- 
taminated   water    411 

typhoid  fever  from  drinking  water  furnished  by  employer. ...  81 

tumor  of  kidneys 87 

unascertainable   internal   disorder 410 

without  accident  not  compensable 72 

DISFIGUREMENT— 

a  fixed  condition 179 

injury  to  tips  of  fingers  as 178 

loss  of  artificial  teeth   as 178 

loss  of  forefinger  and  injury  to  thumb  as 171) 

loss  of  tooth  as 178 

reasons    for   compensating 179 

scar  as  178 

settlement  for  not  reviewable 179 

what  must   be   proved '. . . .  178 

DISOBEDIENCE   OF   RULES— 

injuries    caused    by 420,    421,  423 

positive,  or  instructions,  effect 127,  128,  136,  137 

reduction  of  compensation  for 268 

DISTRIBUTION  OF  PAYMENTS— alone,  insurer  has  no  appeal  on  305 

DIVORCE — of  mother  does  not  affect  dependency  on  son 200 

DIVORCED  WOMAN — as  dependent  under  federal  act 434 

DIZZINESS — produced    by    disease 70 

DOCTORS,  see  TREATMENT  OF  INJURIES. 

DOMESTIC — 

employee,  who  is 34 

injured  shaking  rug 6 

DOMESTIC    EMPLOYMENT 33 

DRINKING  WATER— 

contaminated  typhoid  fever  from 411 

mistaking  poisonous  fluid  for 137 


512  MANUAL  OF  COMPENSATION  LAW 

Page 
DRIVER— 

assisting  another  to  raise  fallen  horse 136 

delivering  material  to  fellow  employee  as  accommodation ....  136 

falling  from  wagon  trying  to  recover  pipe 135 

injury  to    4,   5 

working  for  city  with  employer's  teams 5 

DROWNING — while  attempting  rescue  of  fellow  servant 135 

DRUGS — manufacture  of  as  hazardous  employment  to  utility  man     11 

DRUNKENNESS — as  defense  to  compensation 272 

DUE   PROCESS   OF   LAW— 

abrogation  of  common  law  defenses  not  violative  of 47,  48 

compulsory  compensation  does  not  violate 351,   354 

denial  of  jury  trial  not  inconsistent  with 354 

procedural   provisions   not  inconsistent   with 354 

provisions  of  acts  for  adjustments  by  arbitrators  not  denial  of  360 
removal  of  common  law  defenses  under  certain  conditions  is 

not  denial  of   359 

DUST — inhalation  of  into  lungs  as  personal  injury 410 

DUTY — while   in   the   performance   of 412 

E 

EAR — injuries    to 177 

EARNING    ABILITY— factors    in 143 

EIGHT- HOUR  LAW — as  affecting  average  earnings 189 

ELBOW-^- 

injuries  above  as  to  arm 165 

injuries  below  as  to  hand 165 

ELECTIVE  ACCEPTANCE  OF  COMPENSATION   ACTS— 

employee  cannot  accept  where  employer  rejects 42 

in  general   41-45 

ELECTION  OF  ACT— 

see  also  ACCEPTANCE  OF  ACT. 

by  employee  thirty  days  prior  to  accident 44 

by  employee  within  thirty  days  after  passage 44 

by   minors    55 

by  minor,  effect  on  parents  right  of  action  for  loss  of  services     57 
employers'   defective,  not   cured   by  subsequent  acts   of  em- 
ployee          43 

of  two  different  states 45 

presumption  of,  by  silence  not  defeated  by  employee's  igno- 
rance of  law 45 


INDEX  f  513 

Page 
ELEVATOR— 

operating,  as  hazardous  work  under  N.  Y.  act 14 

operating,  not  hazardous  under  Washington  act 14 

EMERGENCY — acts  done  in,  as  arising  out  of  and  in  course  of 

employment    92 

EMPLOYEE— 

acceptance  of  act  as  to  part  of  employees 35 

acts  not  intended  as  source  of  profit  fon 162 

can  secure  appointment  of  administrator  to  compel  payment 

of    compensation    7 

can  select  physician  when 224 

cannot  accept  where  employer  rejects  act 42 

cannot  assign  claim  for  compensation 316 

cannot  cure  defects  in  employer's  acceptance  of  act  at  time 

of   accident    by    subsequent    election 43 

cannot  refuse  empjoyer's   doctor  unreasonably 224 

cannot  waive  right  to  compensation 315 

control  and  direction  of  when  retained  when  surrendered  to 

city    5 

cost  of  medical  treatment  is  on,  when 224 

effect  of  settlement  by,   with  third   persons 311 

election  of  act  by,  thirty  days  prior  to  accident 44 

election  of  act  by,  within  thirty  days  after  passage 44 

federal,  at  work  for  contractor  is  under  federal  act 403 

federal,  contract  tie  maker  is  not 403 

federal,  owner  of  boat  chartered  to  government  is 402 

federal,  plate  printer  paid  by  piece  is 400 

federal,  working  for  county  is  covered 403 

federal,  workman  of  government  contractor  is  not 401 

fireman  as    18,  19 

has  action  at  law  where  employer  has  not  properly  accepted 

act     43 

ignorance  of,  as  to  presumption  of  election  of  act  by  silence, 

no    excuse 45 

in  agriculture,  who  is 36 

in  exempted  employment  may  agree  with  employer  to  accept 

act 60 

in  hazardous  employment  injured  in  non-hazardous  work....     11 

in   inter-state   commerce 37,   38 

independent  contractor  as 21 

loaned  except  as  to  care  of  master's  horses 5 

may  change  physicians  when 225 

must  accepjt  act  in  writing  in  Kentucky 8 

or  some  one  for  him  must  give  notice  of  accident 245 


514  MANUAL  OF  COMPENSATION  LAW 

Page 
EMPLOYEE — Continued — 

of  United  States,  who  is 400 

of  village  by  invitation  of  village  marshall  to  assist  in  arrest  18 

physical  examination,  must  submit  to  reasonable 234 

pieceworker  as    8 

policemen  as    18,   19 

public  officer  is  not 19 

pupil  in  manual  training  high  school  as,  of  city 18 

required  to  work  for  another  by  contract  with  employer 5 

son    of   father 9 

status  when  required  by  master  to  work  for  another 5 

whether  in  service  of  contractor — employer  or  city 5 

who  is    8 

willful   negligence    of 271 

working  for  another  than  his  master 5 

EMPLOYER— 

acts  not  intended  as  punishment  of 162 

administrator   as 7 

administrative  board  of  State  as 16 

Board  of  Public  Works   as 18 

can  assign  right  of  action  against  third  person 309 

can    select    physician 224 

cannot  recover  from  third  persons  beyond  liability 309 

cannot  recover  from  third  person  when  his  negligence  con- 
tributed     309 

cannot  set  up  infancy  as  bar  to  compensation 58 

city  as,  of  loaned  workman 5 

county  as 17 

charitable    institution    as    7 

deliberate  intention  to  produce  injury 818 

electing,  defenses  of  at  law 262 

failure  of  to  comply  with  specific  statute 322 

father  of  son   9 

general  statement  as  to  who  is 3 

has  knowledge  of  injury,  when 249 

incomplete  compliance  with  act  by,  effect 43 

in  exempted  employment  may  agree  with  employee  to  accept 

act  60 

infant  as   6 

in  New  York  Fund  has  no  appeal 306 

liable   for   compensation   to   employees    of   independent   con- 
tractor in   Massachusetts 22 

liable  for  medical  treatment  in  addition  to   scheduled  com- 
pensation                                                 .  168 


INDEX  515 

Page 

EMPLOYER— Continued- 
may  change  physicians  when 225 

must  accept  act  before  employee  can 42 

must   furnish  medical   aid,   etc 222 

must  know  of  injury  and  have  opportunity  to  furnish  treat- 
ment     228 

must  pay  burial  expenses  when 312 

must  pay  full  compensation  in  accordance  with  terms  of  act  315 

non-electing,  defenses  of  at  law 261 

notice  of,  to  accept  or  reject  act  effective  until  withdrawn. ...     44 

not  liable  for  malpractice  of  physician  he  employs 241,  242 

not  relieved  by  misrepresentation  of  age  by  minor  to  obtain 

prohibited   employment    59 

of  less  than  five  under  Connecticut  act 6 

physical  examination,  has  privilege  of 234 

receiver  as  5 

remedies  against  third  persons 308 

reports   of   accidents   by 318 

State  fire  warden's  department  as 16 

State  highway  commission  as 16 

someone  must  always  stand  in  relation  of 7 

takes  risk  of  known  quarrelsome  and  drunken  condition  of 

employee    119 

the  state  as 15 

town  or  contractor  as 17 

village  as  of  citizen  assisting  village  marshal  in  arrest 18 

when  "mislead  to  his  injury"  by  lack  of  notice 255-258 

when  not  prejudiced  by  delayed  notice 258 

who  is    3 

willful    act    of,    meaning 319 

willful  and  known  violation  of  statute  by .  .*. 322 

EMPLOYER'S  LIABILITY  LAW— when  employee  is  under 338 

EMPLOYMENT— 

see  also  CASUAL  EMPLOYMENT. 

see  also  INCIDENTAL  TO  EMPLOYMENT. 

agricultural    34 

casual,   in   general 25 

concurrent,   with   different   employers    as   affecting   average 

earnings    186 

contract  of,  necessary 4 

domestic    33 

exempted   33,  34 

existence  of,  question  of  law  when 10 

extra-hazardous    .  10 


516  MANUAL  OF  COMPENSATION  LAW 

Page 
EMPLOYMENT— Continued— 

generally  covered  by  acts 3 

grade  of,  as  criterion  for  average  earnings 184 

in  the  course  of,  meaning 413 

obtained  by  misrepresentation 10 

prohibited   minor  in 56 

refusal  to  accept  as  defense  to   compensation 263 

riding  home  from  work  on  wagon  furnished,  as  part  of  con- 
tract of   100 

similar,  false  affidavit  as  to  previous 10 

EMPLOYMENT   OF   A   CASUAL   NATURE 30 

EPI LEPSY 71 

EQUAL  PROTECTION  OF  LAWS — exemption  of  certain  employ- 
ments is  not  denial  of 354 

ERYSIPELAS    71 

ETHER-PNEUMONIA    87 

EVIDENCE— 

see  also  BURDEN  OF  PROOF. 

award  made   entirely   without,   improper 292 

award  not  to  be  based  on  if  it  could  be  denied  or  granted  with^ 

equal  consistency  291 

boards  not  confined  altogether  to  technical  rules  of 290 

burden  of  proof  as  to  accident 87 

burden  of  proof  as  to  arising  out  of  and  in  course  of  employ- 
ment   138 

burden  of  proof  as  to  incapacity  for  work ' 148 

burden  of  proof  as  to  relation  of  employer  and  employee ....  280 

burden  of  proof  as  to  willful  misconduct  or  intoxication....  280 

burden  of  proof  of  unreasonableness  of  refusal  of  employee . .  237 
burden  of  proof  on  employee  that  employer  not  prejudiced  by 

delay    ! 257 

burden  of  proving  facts  necessary,  on  claimant 291 

burden  on  dependent  to  prove  death  resulting  from  injury  295 

circumstantial  accident  may  be  proved  by 291 

coroner's  inquest  and  verdict,  as 292 

employer's  notice  of  accident  prima  facie,  of  facts  stated ....  292 

fact  of  accident  may  be  established  by  circumstantial 88 

hearsay  alone  will  not  support  finding  of  fact 289 

hearsay  rule  is  not  technical  rule  of 290 

letters  rogatory  as 294 

memorandum  of  foreman  as  to  injury  admissible  as  admis- 
sion against  interest 291 

mere  conjecture  not  sufficient  to  establish  fact  of  accident..  88 

of  liability  for  compensation,   necessary 295 


INDEX  517 

Page 

EVIDENCE— Continued- 
opinion,  not  conclusive  in  any  case 228 

proof  of  total  dependency  when  dispensed  with 206 

right   of   board    to   hear 292 

rules   of   in    general 290 

telephone  conversation  admissible  to  prove  notice 251 

whether  accident  arose  out  of  and  in  course  of  employment 

may  be  proved  by  circumstantial 139* 

EXAMINATION,    see    PHYSICAL    EXAMINATION. 

EXCLUSIVE   REMEDY   PROVIDED   BY  ACTS 51-55 

EXCURSION — of  employees,  conductor  injured  while  using  train 

for   414 

EXEMPT— 

compensation  is  from  attachment 316 

compensation  is  under  federal  act 448 

EXEMPTED    EMPLOYMENTS — joint    voluntary    application    for 

benefits   of  acts 60 

EXERCISE — failure  to  take  as  directed 238 

EXPLOSIVES — furnished  to  miner,  as  deduction 314 

EXTRA-HAZARDOUS    EMPLOYMENT— 

in   general    10 

construction  of  man  hole  near  street  car  track  was  not,  under 

Washington    act    14 

operation  of  elevator  in  ordinary  business  house  is  not,  under 

Washington    act 14 

EXTRA-TERRITORIAL    EFFECT    OF   ACTS— 

in    general    325 

Massachusetts   view    331 

New   York  view    327 

EYES — impairment  of  vision,  how  compensated 173-177 

injuries  to  as  arising  out  of  and  in  course  of  employment 121 

injuries   to   under   schedules 172 

loss  of  earning  power  of  one-eyed  man  not  subject  of  judicial 

notice    176 

•   loss  of  four-fifths  vision 172,  173 

loss  of  ninety  per  cent  of  vision 176 

loss  of  one,  by  lumberman 8 

loss  of  one,  loss  of  earning  power  must  be  affirmatively  es- 
tablished      176 

loss  of  one  through  horseplay 107 

loss  of  one  where  first  was  lost  previously 149 

loss  of  sight  of,  due  to  gonorrheal  infection 177 

vision  ten  per  cent  normal  with  glasses,  fifty  without 174 


518  MANUAL  OF  COMPENSATION  LAW 

F 

Page 

FACTORS   IN    EARNING  ABILITY 143 

FAILING  HEALTH— as  affecting  total  disability 153 

FAILURE   OF   EMPLOYER — to  comply  with  specific  statute 322 

FAILURE  TO  AGREE — must  precede  application  for  hearing 298 

FARM,   see   AGRICULTURE. 

'FARM    LABORERS— defined 36 

FARM   WORK— defined    36 

FATHER,   see    DEPENDENTS. 
FEDERAL   COMPENSATION    LAW— 

act  of  1916  supersedes  all  former  Federal  acts 399 

acute  bronchitis  from  inhalation  of  gas  fumes 411 

adopted   child   as   dependent 436 

aggravation  of  previous  ailment  by  injury 408 

amount  of  compensation  to  dependents 429,   430,   431 

appropriation  for   452 

artificial  leg  breaking  of,  not  personal  injury 409 

assignments   void,   compensation   exempt 448 

award  or  refuse  compensation,  commission  may 453 

beneficient  statute  in  nature  of  act  granting  pensions 407 

burial    expenses   under    444 

cardiac  hypertrophy  from  breathing  fumes  of  ether 411 

children  with  surviving  parent,  compensation  to  whom  paid . .  437 

claims  for  compensation,  when  and  how  made 446 

"commission,"  meaning   454 

compensation    commission,    organization,    powers 450 

contract  tie  maker  is  not  employee  under , 403 

day  of  injury  counted  as  first  day  of  disability 424 

days  of  disability  need  not  be  consecutive 425 

death,  to  whom  compensation  payable  in  case  of.... 429,  430,  431 

definitions   of   terms   used 45 1 

dependency  a  question  of  fact 439 

dependency,   what   is    440 

dependents  illustrations  of 439-414 

divorced  woman  as  dependent 434 

dependents,  who  are 429,  430,  431 

development  of  legislation  regarding 388 

"employee,"    meaning    454 

employee  of  government  working  for  contractor  is  under. . . .  403 

employees    compensation    fund 452 

employee's    intention   to   bring   about   injury 423 

employees  under  act  of  1908 400 

false  affidavit  or  claim,  penalty  for 453 


INDEX  519 

Page 

FEDERAL  COMPENSATION   LAW— Continued- 
federal  employee  working  for  county  is  under 403 

foster  parent  by  adoption  may  be  dependent 438 

husband  and   wife,   who  are 432 

illegitimate    children,    under    432-436 

infection  of  hand  with 'secondary  infection  as  injury 409 

inhalation  of  dust  into  lungs  as  injury 410 

injury,  meaning  of  word 407 

internal  injury  caused  by  heavy  lifting 408 

"in  the  course  of  employment,"  under  act  of  1908 413 

intoxication  as  proximate  cause  of  injury  or  death 423 

lead  poisoning  as  injury 410 

loss  of  one  eye  under  act  of  1908 411 

lump  sum  settlements 445 

maximum  and  minimum  compensation 427 

medical    attention    428 

medical  examinations  and  fees 447 

mistake  of  law  or  fact,  payments  made  under 453 

monthly  pay  how   computed 443 

"monthly  pay,"  meaning 454 

monthly  wage  earning  capacity  how  computed 445 

negligence  or  misconduct  under  act  of  1908 418 

notices  of  injury  when  and  how  given 446 

no  salary  or  pay  during  compensation  period 427 

owner  and  engineer  of  power  boat  chartered  by  government 

is  not  under 403 

Panama  railroad,  provision  concerning 454,   455 

personal  injuries  general  illustrations  of  under  act  of  1908..  408 

personal   injury   under 403 

personal  injury,  use  of  phrase  under  act  of  1908 404 

"physician,"  meaning    454 

plate  printer  paid  by  the  piece  is  employee 401 

previous  orders  or  awards  may  be  reviewed 453 

repealing  clause   and   provisos 454 

reports  of  injuries,  who  to  make 448 

severe  cold  resulting  in  pneumonia  as  personal  injury 408 

sick  leaves  annual,  added  to  compensation 428 

strain,  continuous   injuries   from 412 

strain  from  too  fast  work 412 

suitable  work  refused,   no  compensation 427 

sunstroke    as    personal    injury 409 

text  of  act  of  1908  and  amending  acts 392-399 

third  persons,  injuries  caused  by,  procedure 448 

total    disability,    compensation    for 426 


520  MANUAL  OF  COMPENSATION  LAW 

Page 

FEDERAL   COMPENSATION   LAW— Continued— 

to   whom   applicable 400 

tuberculosis  of  glands  from  slight  blow  on  jaw 408 

tuberculosis   superinduced   by   brass    poisoning 412 

typhoid   fever   from    contaminated    drinking   water 411 

vaccination  under  orders  of  superior 409 

waiting    period    under 423 

waiting  period  under  act  of  1908 424 

while  in  the  performance  of  his   duty,  meaning 412 

who  is  employee  of  United  States 400 

widow   of   employee,   who   is 432 

willful  misconduct  as  proximate  cause  of  injury 417 

workman  employed  by  contractor  is  not  under 401 

FEDERAL   EMPLOYERS'   LIABILITY   LAW    (see  Section  265),  37,  38 
when  employer  is  under , 338 

FEES— 

of  attorneys    316,   317 

of  physicians,  see  TREATMENT  OF  INJURIES. 

FELLOW   SERVANT— 

collision  with,  while  running  to  punch  time  clock 101 

defense  of,  not  available  to  non-electing  employer 45,  46,  47 

FELLOW  SERVANT  RULE— at  law 345 

FEMORAL  HERNIA — refusal  to  submit  to  operation  for,  not  un- 
reasonable    241 

FINDINGS   OF    FACT— 

as  to  dependency,  conclusive  where  supported  by  evidence...  196 
as  to  dependency,  reviewable  only  as  to  standard  applied. . . .  195 

binding,  if  any  reasonable  view  of  evidence   supports 288 

binding,  if  it  has  basis  in  the  competent  evidence 291 

binding,  though  evidence  weak  and  unsatisfactory 289 

can  be  set  aside,  if  no  evidence  to  support 287 

cannot  be  based  on  mere  conjecture  or  surmise 290 

conclusive  on  appeal,  where 287 

hearsay  evidence  alone  will  not  support -289 

must  have  evidence  to  support 175 

new,  cannot  be  made  when  court  returns  record  for  comple- 
tion      289 

not  based  on  evidence,  reversible  as  error  of  law 289 

not  to  be  set  aside  because  court  takes  view  different  from 

board    289 

on  same  footing  as  verdict  of  jury  or  finding  of  court 289 

that  mother  was  dependent  held  conclusive  on  appeal 196 

FINDINGS  OF  LAW — not  conclusive  on  appeal 290 


INDEX  521 

Page 
FINGERS— 

loss  of  outer  phalange  of  third,  equals  loss  of  half  finger 167 

injuries  to  several,  cumulative,  not  exceeding  amount  for  loss 

of    hand     170 

injury  to  middle  and  index,  of  left  hand 170 

injury  to  tips  of,  as  disfigurement 178 

loss  of  first  phalange  of  index 168 

loss  of  forefinger  and  injury  to  thumb  as  disfigurement 179 

loss  of  four,  on  right  hand 169 

loss  of  index,  second  and  third,  fourth  stiff 167 

loss  of  part  of  second  phalange  of  index  finger  as  loss  of. ...  168 

loss  several,  on  each  hand 171 

paralysis  of,  equal  to  loss  of  hand 165 

FIREMEN— 

as  employees   18,  19 

as  public  officers   19 

FIRST    AID — meaning    222 

FLUCTUATION   OF  WAGES — as  affecting  average  earnings 190 

FOOT   OR    LEG— injuries  to : 163 

FOOT — usefulness  no  more  than  artificial .. . .   161 

FORFEITURE— 

of  part  of  compensation  distinguished  from  total  forfeiture..  270 
or  reduction  of  compensation  for  disobedience  of  rules.. 268,  270 
FOREMAN— 

injured  stopping  fight  of  men 415 

of  department  of  factory,  notice  to  not  sufficient 248 

notice  to,  when  manager  was  on  floor  below 249 

verbal  notice  to,  good  if  in  writing,  as  notice 249,  251 

FORM — of  notice  or  claim  for  injuries 246 

FOSTER   PARENT — by  adoption  as  dependent 438 

FRACTURE — disability  from  slipping  after  set 115 

FR  AU  D — settlement  may  be  set  aside  for 297 

FREEZING — injuries   from H* 

FRIGHT — without  injury  will  not  sustain  award 85 

FROSTBITE — injuries    from 114 

FUND — federal  employee's  compensation 452 

FUNERAL  EXPENSES— 

in    general    312 

under  federal  act  444 

FUN-MAKING — as  arising  out  of  and  in  course  of  employment 

105,  108 

FURTHERING    MASTER'S    BUSINESS — acts,   as   arising   out   of 

employment    ' 124-127 


522  MANUAL  OF  COMPENSATION  LAW 

G 

Page 

GARNISHEED — claims   for  compensation   cannot   be 316 

GAS   FUMES — acute  bronchitis  from  inhalation  of 411 

GOGGLES  OR  SHIELDS — refusal  to  wear  is  misconduct 423 

GOING  TO  OR   FROM    WORK— accident • 96 

GONORRHEAL  INFECTION — loss  of  eye  caused  by  rubbing.  .121,  177 
GRADE  OF  EMPLOYMENT — as  criterion  for  average  earnings..  184 
GRATUITIES — when  included  in  average  earnings 181 

H 

HAND— 

flexor  tendons  of  fingers  cut,  useful  only  as  hook 166 

injuries  between  elbow  and  wrist  as  injuries  to 165 

loss  of,  through  horseplay 105 

loss  of,  where  first  was  lost  previously 151 

HAND    OR    ARM— loss    of 164 

HARVESTING  ICE — not  hazardous  employment  under  N.  Y.  Act  13 

HAZARDOUS    EMPLOYMENT— 

but  employee  injured  in  non-hazardous 11 

elevator  man  was  in,  under  N.  Y.  act 14 

employee  of  retail  butcher  was  in,  under  N.  Y.  act 13 

employee  of  wholesale  grocery  was  not  engaged  in  "warehous- 
ing" under  N.  Y.  act 13 

general  illustrations  of   13 

harvesting  ice  is  not,  under  N.  Y.  act 13 

hotel  butcher  was  not  in,  under  N.  Y.  act 13 

janitor  was  not  engaged  in,  under  N.  Y.  act* 13 

macaroni  manufacturer  employing  carpenter  by  hour  was  not 

in  under  N.  Y.  act '. 14 

one  department  of  a  business  as 12 

stable  man  was  in,  under  N.  Y.  act 13 

H  EALTH — failing,    as    affecting    disability 153 

HEARING— 

failure  to  agree  must  precede  application  for 298 

impairment  of  177 

to  be  at  most  convenient  place 284 

HEARSAY,  see  EVIDENCE. 

HEART    DISEASE— 

generally  76 

under    English    act 74 

HEAT   AND   COLD — injuries   from ..113-116 


INDEX  523 

Page 
HEAT— 

artificial,  injuries  from  11$ 

of  sun  intensified  by  artificial  heat  injuries  from 115,  116 

HEIRS — non-dependent,  when  entitled  to  compensation 202,  203 

HELPER — wages  of,  as  affecting  average  earnings 182,  183 

HERNIA— 

as  accident  80 

essentials  of  proof  concerning 81 

femoral,  refusal  to  allow  operation  for 2-tl 

new,  rarely  occurs   from  accident 80 

HIGHWAY    COMMISSION— as    employer 1« 

HOLIDAYS — as  affecting  average  earnings 183,  189 

HORSE  HIRE — allowance  for,  as  affecting  average  earnings 182 

HORSE  PLAY — as  arising  out  of  and  in  course  of  employment.  105-108 
HOSPITAL   TREATMENT — beyond   requirements   of   act   as   de- 
duction   313 

HOSPITALS,  see  TREATMENT  OF  INJURIES. 

HOUSE  RENT — free,  as  deduction  from  compensation 313 

HUSBAND  AND  WIFE— 

as  dependent  on  each  other 205-212 

earning  separate  living  apart  though  not  divorced  as  depend- 
ents  207 

under   federal   act 432 

when  living  apart  under  acts 206-212 

HYSTERIA— 

causing  paralysis  of  arm 280 

or  malingering    280 

HYSTERICAL  BLINDNESS— as  injury 84 

HYSTERICAL    CONDITION— as    disability 144 

I 

ICE — injury  from  fall  caused  by,  when  running  to  catch  street  car    95 
IDLENESS — from  stopping  of  work  or  holidays,  as  affecting  aver- 
age earnings    189 

ILLEGAL    EMPLOYMENT — settlement   under  act   does   not   bar 

action  based  on 298 

ILLEGITIMATE  CHILDREN— under  federal  act 432-436 

ILLNESS — as  affecting  average  earnings 190,  191 

IMPAIRMENT    OF    HEARING— when   compensable 177 

IMPAIRMENT    OF    MEMBER— not    loss 158 

IMPAIRMENT  OF  VISION— how  compensated 173-177 

IMPRISONMENT — of  man  drawing  compensation  for  injury 214 

IMPRISONMENT  OF  WORKMAN— deduction  for  denied 313 


524  MANUAL  OF  COMPENSATION  LAW 

Page 

INABILITY  TO  PROCURE  WORK— as  disability 146 

IN    ADDITION    TO    ALL    OTHER    COMPENSATION— construed 

157,    171 

"IN   THE   COURSE   OF"— defined 90,   91,   93,   101 

IN  THE  COURSE  OF  EMPLOYMENT— 

see  also  ARISING  OUT  OF  AND  IN  THE  COURSE  OF 
EMPLOYMENT  and  INCIDENTAL  TO  EMPLOY- 
MENT. 

arm  broken  by   being  struck  by  angry  foreman 413 

boy  working  on  other  machine  than  where  employed 414 

burns  from  setting  fire  to  bandages  of  former  injury 414 

cleaning   pistol   at  night  in   employer's   quarters 416 

drowning  while  returning  to  quarters  after  working  hours 

415,  416,  417 

employee  riding  home  from  work  on  labor  train 413 

explosion,  injury  by  while  on  premises  waiting  to  work 413 

fall  whrle  leaving   shop  at  close  of  day's  work 413 

fireman  injured  outside  the  territory  controlled   by  United 

States    413 

following  customary  path  on  premises,  injuries  as 414 

foreman   injured   stopping   fight  of  men 415 

games  at  noon  hour,  injuries  as  a  result  of 417 

going  to  place  of  work  under  directions  of  employer 416 

injury  after  hours  but  at  quarters  provided  for  use 414 

injuries  on  highway  on  way  to  work  are  not 413 

mad  dog,  workman  bitten   by 414 

main   gate,   injuries   going   through 416 

messenger  boy  falling  from  bicycle 417 

meaning  under  federal  act  of  1908 412 

on  the  premises  of  employer  on  way  home  after  work 416 

railroad  conductor  on  employee's  excursion  trip 414 

"ringing  out"  at  time  clock  injury  while 413 

running  to  punch  time  clock  after  playing  ball  at  noon  hour  415 

volunteer,  injuries  while  doing  work  as 415 

workman  going  to  assistance  of  fellow  workman  attacked  by 
third 414 

INCAPABLE   OF   USE— when  hand  is 166 

INCAPACITY    FOR   WORK— as  disability 148 

INCIDENTAL  TO   EMPLOYMENT— 

accident  while  going  to  place  of  work  under  orders  of  master    98 

death  by  lightning  is  not  a  risk 110 

feeding  and  caring  for  horse,  to  truck  driver's 134 

hitching  and  unhitching  horse,  to  truck  driver's 134 

'injuries  by  drunken  fellow  servant  when . .  .  119 


INDEX  525 

Page 

INCIDENTAL  TO   EMPLOYMENT— Continued- 
injury  on  stairs,  only  access  to  work  though  not  employer's . .  103 

loading  and  unloading,  to  truck  t  driver's 133 

occasional   pranks   of   employees   as 107 

riding  from  place  of  work  in  wagon  furnished  by  master. . . .  100 

risk  of  seeking  shelter  during  storm  is 133 

when    risk    is 94 

INCOME — general  as  affecting  average  earnings 181 

INCOMPLETE  COMPLIANCE  WITH  ACT— by  employer  effect..     43 

INDEPENDENT     ENTERPRISER— defined 21 

INDEPENDENT  CONTRACTOR— 

acting  in  place  of  employee  as  employee 21 

and  independent  enterpriser,  distinguished 21 

as   employee    20 

defined   20,  23 

lather  as   23 

lumberman  cutting  timber  by  the  piece  is  not 9 

not  employee  22 

owner  of  boat  chartered  to  government  is 402 

painter  working   alone   and   furnishing  materials   and   appli- 
ances as  employee 21 

quarryman    as     24 

taxicab  driver  on  shares  as 24 

teamster  as    23 

vaudeville    actress    as 23 

whitewasher   as    23 

who  are  20 

INEBRIETY — as   defense  to  compensation 272 

INFANT,  see  MINORS. 

as  employer  6 

INFANCY— 

can  only  be  taken  advantage  of  by  infant 58 

employer  cannot  set  up  as  bar  to  compensation 58 

INHERITANCE— held  not  to  affect  dependency 198 

INJURIES   OTHER   THAN   THOSE   SCHEDULED 158 

INJURY  BY  ACCIDENT— use  of 62 

INJURY  PROXIMATELY  CAUSED   BY  ACCIDENT— Meaning  of 

66,  67,  68 

INJURY— 

see  also  PERSONAL  INJURY. 

abscess  from  splinter  in  hand 222 

abscess  of  thumb  caused  by  unpadded  splint 129 

accidental  though  caused  by  negligence 64 

age  or  health  as  affecting 153 


526  MANUAL  OF  COMPENSATION  LAW 

Page 

I N  J  U  RY— Continued- 
aggravation  of  in  boxing  match,  causing  loss  of  hand 68 

aggravating  pre-existing  disease 76 

amputation  of  great  toe 226 

blood  poisoning  from  stage  hand  picking  out  splinter  in  hand  256 

breaking  neck  in  fall  from  wagon  due  to  intoxication 274 

broad  coverage  where  word  used  without  limitations 62,  64 

both  legs  cut  off  by  train 132 

blinded  by  powder  blast 172 

blood  poisoning  from  abrasion  of  skin 255,  257 

by  collapse  of  bin  on  miner  who  was  resting  in  its  shade ....  267 

between  elbow  and  wrist  as  injury  to  hand 165 

blood  poison  from  abrasion 67,  255,  257 

by  electric  wires  from  failure  to  wear  rubber  gloves 266 

capsizing  of  boat  due  to  intoxication 276 

caused   by   third   person 307 

cellulitis  of  joints  of  finger 167 

concurrent    disability    from    two 160 

definition  of  under  Massachusetts  act 118 

deliberate  intention  of  employer  to  produce 318 

diseases  as,  in  general . . . '. ." 69 

driver  falling  from  wagon 4,  5,  135,  136 

employee   warming   himself   between    cars 130 

falling  off  a  boat  while  asleep 267 

fall  of  painter  from  scaffold  due  to  intoxication 276 

fingers    crushed    while    cleaning    motorcycle 134 

fingers   of  blind  man   crushed 7 

foot   and   other 162 

foot  lost,  shoulder  broken,  other  leg  gashed  and  minor 161 

fracture  of  chauffeur's  arm  while  cranking  automobile 129 

from    automobile    turning    turtle 275 

from  drinking  poisonous  fluid  for  water 137 

from  explosion  of  dynamite  cap 125 

from  prohibited  use  of  automobile 128 

from  rescuing  fellow  employee 122 

going  to  lunch  or  preparing  to  go 101 

horse  squeezing  truck  driver  against  stall 133 

internal  caused  by  heavy  lifting 408 

loss  of  arm  and  other 161 

loss  of  eye  by  lumberman 3 

loss  of  fingers  on  both  hands 171 

loss  of  forefinger  and  injury  to  thumb 179 

,  loss  of  four-fifths  vision  in  both  eyes 172,  173 

loss  of  four  fingers  on  right  hand .  169 


INDEX  527 

Page 

INJURY— Continued- 
loss  of  hand  or  arm 164 

loss  of  index,  second  and  third  fingers,  fourth  stiff 167 

loss  of  leg  by  walking  on  screw  conveyor 268 

loss  of  one-half  vision  by  spark  from  emery  wheel 173 

loss  of  outer  phalange  of  third  finger 167 

loss  of  part  of  ear  by  horsebite 177 

loss  of  part  of  second  phalange  of  index  finger  as  loss  of 

finger   168 

loss  of  second   eye •  149 

loss  of  second  hand 151 

loss  of  teeth   178 

loss  of  two  fingers  on  wire  drawing  machine 188 

meaning   of   within   acts 63 

meaning  of  word  under  federal  act  of  1908 407 

mutilation  of  thumb  as  loss  of  phalange 169 

needle  puncturing  finger  causing  loss  of  first  phalange 167 

personal,  use  of  under  federal  act  of  1908 404 

personal,   under  federal   law 403 

produced  by  willful  act  of  employer 319 

reopening  of  old  wound  by  engaging  in  boxing  match 238 

riding  from  place  of  work  in  wagon  furnished  by  employer. .  100 

self-inflicted,  as  defense 265 

sheriff  shooting  night  watchman  by  mistake 267 

sprain    of    wrist 405 

to  ankle   from   electrical  burn 163 

to  eye  by  rubbing  after  slight  injury 177 

to  eyes  under  schedules 172 

to  domestic,  shaking  rug 6 

to  driver  of  truck  by  collision  with  street  car 311 

to  foot  or  leg 163 

to  hand  touching  fan  in  hot  air  pipe '. 104 

to  knee  by  fall  on  sidewalk 98 

to  middle  and  index  fingers  of  left  hand 170 

to  skull,  collar  bone,  ribs,  eye,  nose,  mouth,  ear  and  arm....  162 

to  tendons  of  fingers  cut  making  hand  useless 166 

to  tips  of  two  fingers 178 

use    of    word 61 

while  demonstrating  how  a  previous  fall  occurred 136 

whitewashing  around  running  machinery 266 

woman's  hair  caught  in  machinery  while  combing  out  par- 
ticle   of    wool 101 

IN    LIEU    OF  ALL   OTHER   COMPENSATION— where  scheduled 

injuries   are    15S 


528  MANUAL  OF  COMPENSATION  LAW 

Page 
I NQU  EST — coroner's,  finding  of  as  evidence 292 

INSANITY — injuries  from  as  arising  out  of  employment 110-112 

INSPECTOR— notice   to   not  sufficient 248 

INSTRUCTIONS — disobedience  of,  effect 127,  128,  136,  137 

INSURANCE   AGENT— falling  down  stairway  while  collecting..  136 
INSURANCE  CARRIER — has  all  rights  of  employer  in  regard  to 
selection   of  physician 22-1 

INSURER— 

has  no  appeal  on  distribution  of  payments  alone 306 

in  New  York  fund  has  no  appeal 306 

subrogated  to  rights  of  employer  against  third  persons 309 

INTERMISSIONS    FROM    WORK— accidents    during 101-105 

INTERMITTENT    EMPLOYM ENT— may   be   casual 28 

INTERNAL   RUPTURE — as  accident 78 

INTER-STATE  COMMERCE— 

acts  as  applied  to  employees  in   (see  section  265) 37 

employees  of  employer  in,  covered  as  to  intra-state  work ....  385 

must  be  in  inter-state  transportation  to  be  in 338 

railroad   construction   work   is   not 338 

right  of  state  to  legislate  regarding -11 

when  employee  is  engaged  in 338 

INTOXICATION— 

accident  due  to,  does  not  arise  out  of  employment 272 

.as   defense    272 

as    willful    misconduct 272 

automobile  overturning  as  a  result  of 275 

breaking  neck  in  fall  from  wagon  due  to 273,  271 

fall  of  painter  from  scaffold  due  to 276 

must  be  contributing  cause  or  proximate  cause 272 

must  be  only  cause  of  accident  in  Maryland 275 

not  a  condition  of  drunkenness  resulting  in  helplessness ....  276 

of  employee,  when  known  to  master  in  his  risk 119 

skiff   overturning   because   of   boatman's 276 

under   federal    act 423 

INTRA-STATE    WORK — acts   apply   to   employees   of   inter-state 

employers   engaged   in 385 

IOWA  LAW— tested  in  U.  S.  Supreme  Court..  ..356-364 


INDEX  529 

J 

Page 
JANITOR — not   engaged  in   hazardous   employment   under   N.   Y. 

act    13 

JUDICIAL   NOTICE — loss  of  earning  power  of  one-eyed  man  Is 

not    subject    of 176 

JUDICIAL   OFFICERS — members  of  boards  or  commissions   are 

not    283.  293 

JURISDICTION — extra-territorial    of    acts 323 

JURISDICTIONAL  QUESTION— willful  misconduct  is 267 

JURY— 

finding  of  fact  of  board  similar  to  verdict  of 289 

verdict  of,  finding  of  fact  on  same  footing  as 289 

JURY  TRIAL — denial  of  not  inconsistent  with  due  process  of  law  354 

K 

"KNOWLEDGE  OF  INJURY"— when  employer  has 249 

L 

LABOR  UNIONS — regulations  of  as  affecting  average  earnings..  188 

LATH  ER — as   independent  contractor 23 

LAPSE   OF   MEMORY — injuries  from  as  arising  out  of  employ- 
ment       Ill 

LAYI NG  OFF — as  affecting  average  earnings 183 

LEAD   POISONING— as  personal  injury 410 

LEG   ARTIFICIAL — breaking  of  not  personal  injury 409 

LEG   OR    FOOT— injuries  to 163 

LEISURE  TIME— injuries  during 130,  131 

LETTERS  ROGATORY— as  evidence 294 

LIEN — prior,  right  of  compensation  is 315 

LIFE  SAVING  SERVICE— federal  compensation  prior  to  1916 383 

LIGHTNING — injuries  from  as  arising  out  of  employment 107 

LIMITATION— 

does  not  run  against  claim  filed  with  board  though  not  pushed  260 

ignorance   of  not   excusable   mistake 259 

may  be  extended  by  payment  of  wages 259 

not  extended  by  payment  of  medical  bills 259 

of  proceedings    for   compensation 259 

LIQUOR — employee  under  influence  of 272 

LIVING   APART — when   husband  and  wife  are,  within  meaning 

of   statutes    .  206-212 


530  MANUAL  OF  COMPENSATION  LAW 

Page 
LIVING  TOGETHER— 

see  DEPENDENTS. 

under   federal    act 432 

LOANED    EMPLOYEE     6 

LOCKJAW    71 

LODGING  AND  BOARD — when  included  in  average  earnings.  .181,  183 

LONGSHOREMAN — not  casual  employee  under  facts  stated 28 

LOSS — impairment   of  member   is   not ' 158 

LUMP  SUM   SETTLEMENTS— 

act  must  be  followed  in  making 303 

advisability  of  a  question  of  fact 299 

allowed  where  woman  was  62  years  and  had  no  means  of  sup- 
port   301 

amount  to  be  paid  as  a  question  of  fact 299 

discount  usually  allowed   on   probable   payments 300 

when    allowable    generally 299-304 

where  can  be  made  only  by  agreement 303,  304 

under  federal  act  445 

LUNCH — going  to  or  preparing  to  go  accidents  while 101 

M 

MAD  DOG — workman  bitten  by 414 

MALINGERING— 

as   defense   to  compensation 277 

or  hysteria   280 

question  of  fact 277 

MALPRACTICE— 

as  affecting  compensation 241 

division  of  opinion  as  to  employer's  liability  for 241-244 

employer  liable  for  during  90  days  in  Wisconsin 242 

employer  is  not  liable  for 241,  242 

MANAGER — notice  to  half  hour  after  accident 249 

MANNER  OF  GIVING  NOTICE— when  sufficient 248 

MARRIAGE— 

as  affecting  dependency 212 

common  law,   under  federal   act 432 

false  affidavit  as  to,  in  securing  employment,  effect 10 

of  dependents  stops  compensation 214 

MASTER   AND   SERVANT— 

relation  of  at  common  law  must  be  shown 8 

to  what  relations  of  at  common  law,  acts  apply 5 

MAXIMUM — compensation  under  federal  act 427 

MAYOR — knowledge  of,  as  to  accident,  is  knowledge  of  city....  251 


INDEX  531 

Page 
MEDICAL  ATTENTION— 

see  also  TREATMENT  OF  INJURIES. 

under  federal  act 428 

MEDICAL  TREATMENT,  see  TREATMENT  OF  INJURIES. 

MESSENGER    BOY— fall   from   bicycle 417 

MILIARY   TUBERCULOSIS— held   caused   by   accident 70 

MINER— 

blasting  against  orders  not  covered 136 

remaining  at  work  after  warning  of  blast 13C 

.    riding  on  car  contrary  to  orders 136 

MINIMUM — compensation  under  federal  act 427 

MINORS— 

settlement  under  act  does  not  bar  action  based  on  illegal 

employment    298 

action  for  compensation  by,  binds  minor  as  to  questions  In- 
volved      59 

adults  as  dependent  on 203-205 

bound  by  action  by  next  friend  for  compensation 59 

conclusiveness  of  claim  for  compensation  by 58 

election  of  acts  by 55 

employer  cannot  set  up  infancy  as  bar  to  compensation 58 

infancy  a  personal  privilege  which  minor  only  can  take  ad- 
vantage of    58 

in   prohibited   employments , 56 

legislature  can  make  sui  juris 56 

made  sui  juris   56 

misrepresentation  of  age  by,  to  obtain  a  prohibited  employ- 
ment does  not  relieve  employer 59 

parents'  right  of  action  for  loss  of  services  of 57 

probable  wage  increase  of,  as  affecting  compensation  of  de- 
pendents        205 

"MISLEAD  TO  HIS   INJURY"— when  employer  is  by  failure  of 

notice    255-258 

MISREPRESENTATION— 

employment  obtained  by    10 

of  age  by  employee 10 

of  age  by  minor  to  obtain  prohibited  employment  does  not 

relieve   employer    59 

of  immaterial  facts  as  affecting  compensation 10 

of  name  by  employee 10 

of  name  and  age  has  no  direct  connection  with  employment 

when    10 

MISTAKE— settlement   may   be    set   aside    for 297 

MISTAKE  OF  FACT — federal,  payments  made  under,  recoverable  453 


532  MANUAL  OF  COMPENSATION  LAW 

Page 

MISTAKE  OF  LAW — federal,  payments  made  under  recoverable  453 

"MISTAKE  OR   OTHER    REASONABLE   CAUSE"— for  failure  to 

give  notice  of  claim,  meaning 251-255 

MIXED  QUESTION  OF  LAW  AND  FACT— willful  misconduct  is  269 

MONTHLY  PAY — how  computed  under  federal  act 445 

MOTHER,   see    DEPENDENTS. 

MOTION— loss    of    in    ankle 163 

MOTORCYCLE — injuries  while  cleaning  as  arising  out  of  and  in 

course   of   employment    134 

MOTOR  VEHICLE  ACT— violation  of  willful  misconduct 267 

MURDER— 

as  arising  out  of  and  in  course  of  employment 116,  117 

of  cashier  carrying  pay  roll,  when  compensable 135 

N 

NAM  E — misrepresentation    of   by  'employee 10 

NATURAL    HAZARD   OF    BUSINESS— acts   aim   to   relieve   em- 
ployee of  loss  from  injuries  due  to 69 

NEGLIGENCE— 

absolute  liability  without,  not  created  by  removal  of  common 

law  defenses   47 

contributory  distinguished  from  willful  misconduct 270 

injury  caused  by,  may  still  be  accidental  within  acts 64 

removal  of  defenses  does  not  create  liability  for,  greater  than 

at   common    law 47 

willful,  of  employee  as  defense 271 

NERVOUS  CONDITION— as   disability 144 

NERVOUS    SHOCK— as    accident 84 

NEUROTIC   CONDITION    69 

NEW  YORK   LAW— tested  in  U.  S.  Supreme  Court 336-358 

NEXT  FRIEND — action  for  compensation  by  binds  minor 59 

NIGHT  WATCHMAN— killed  in  shooting  affray 126 

NON-RESIDENT   PARENTS— dependency   of  a   question  of  fact  196 
NOTICE— 

of  election  of  act  by  employee 44 

of  election  to  carry  own  risk  by  employer  must  be  approved 

before  coverage  of  act  begins 13 

of  rejection  of  act  when  to  be  given 45 

to  accept  or  reject  act  effective  until  withdrawn 44 

NOTICE  OF  INJURIES— 

see  also  CLAIMS  FOR  INJURIES, 
action   at   law,   as .   260 


INDEX  533 

Page 

NOTICE  OF  INJURIES— Continued- 
brother-in-law  of  deceased  may  give  for  benefit  of  non-resi- 
dent sister   247 

by  disinterested  persons  in  behalf  of  others 246-248 

conversation  with  officer  of  employer  as 248 

employee  has  reasonable  time  to  give 245 

employee  or  some  one  for  him  must  give 245 

form    of    246 

knowledge  of  corporate  agent  is  knowledge  of  city 250 

"knowledge  of  injury"  when  employer  has 249 

limitations,  ignorance  of,  no  excuse  for  failure  to  give 259 

limitations  on  giving  of 259 

to  manager,  half  hour  after  accident 249 

manner  of  giving  when  sufficient 248 

may  be  signed  by  attorney  at  direction  of  brother  in  behalf 

of  alien  widow   248 

mere  payment  of  wages  is  not  excuse  for 253 

"mislead  to  his  injury"  when  employer  is  by  failure  to  give. 255, 258 

"mistake  or  other  reasonable  cause"  for  failure  to  give 251-253 

must  be  given  "as  soon  as  practicable"  after  accident 255 

purpose  of  requiring    245 

telephone  message  tas   249,  251 

three  weeks  delay  in,  too  long  to  hold  employer  for  medical 

treatment    229 

to   ambulance   man   of   employer 249 

to  bookkeeper  by  mother  of  employee 249 

to  bookkeeper  by  wife  of  employee 249 

to  foreman  of  department  of  large  factory 248 

to  foreman  verbally  249,  251 

to  foreman  when  manager  was  on  floor  below 249 

to  inspector  or  timekeeper 248 

to  mine  official  entering  record  of  accident  in  book 248 

to  one  partner,  sufficient 248 

to  secretary  seeing  injured  once  a  week  for  month 248 

want  of  or  delay  in  giving,  not  always  a  bar 251 

when  and  how  given  under  federal  act 446 

when  employer  is  "mislead  to  his  injury"  by  lack  of 255-258 

when  employer  is  not  prejudiced  by  delay  in 2 

written,  failure  to  give  not  always  a  bar 250 

NOVUS  ACTUS  INTERVENIENS— meaning  295 

NURSING,  see  TREATMENT  OF  INJURIES. 


534  MANUAL  OF  COMPENSATION  LAW 

o 

Page 

OCCUPATIONAL  DISEASES— 

as  natural  hazard  of  business 69 

Massachusetts   view    74 

Michigan  view    73 

not    accidents    65 

OFFICER — of  company,  conversation  with  as  notice 248 

OPERATION— 

surgical,  death  resulting  from 87 

OPERATION,  see   UNREASONABLE   REFUSAL. 

OPERATION,  see  TREATMENT  OF  INJURIES. 

ORDERS— 

disobedience  of   127,  128,  136,  137 

federal  commission  may  review  previous  awards  or 453 

"OUT  OF"— defined  90,  91,  93,  101 

OWN   RISK  CARRIERS — not  within  act  until  notice  of  election 

to  carry  own  risk  approved 43 

P 

PAI N — as  causing  temporary  total  disability 145 

PAINTER — falling  from  scaffold  due  to  intoxication 276 

PANAMA  RAILROAD — federal  act  provisions  concerning 454,  455 

PARALYSIS 70 

of  fingers,  equal  to  loss  of  hand 165 

PARENT— 

foster  by  adoption  as  dependent 438 

meaning  of  term 219 

non-resident,  dependency  of,  a  question  of  fact 196 

right  of  action  for  loss  of  services  of  minor  electing  act 57 

surviving  dependent   218 

PARESIS    70 

PARTIAL  DEPENDENCY — though  contributions  are  irregular  in 

time  and  amount 195 

PARTLY  DEPENDENT,  see  DEPENDENCY  AND  DEPENDANTS. 
PARTIAL  DISABILITY,  see  DISABILITY. 
PARTIAL  DISABILITY— 

compensation  for,  based  on  difference  between  earnings  be- 
fore  and   after  accident 174 

under  federal  act    426 

PARTNERSHIP — notice  to  one  sufficient 248 

PAY — none  under  federal  act  during  compensation  period. .  .427 


INDEX  535 

Page 

PAYMENTS— 

distribution  of  alone,  insurer  has  no  appeal  on 306 

of  compensation  to  one  for  benefit  of  all  dependents 217 

previous  over,  of  compensation  no  deduction  for 314 

to   supposed   dependents 219 

PERSONAL  INJURY— 

acute  bronchitis  from  inhalation  of  gas  fumes 411 

aggravation  of  previous  ailment  by 408 

breaking  of  artificial  leg  is  not 409 

from  continuous   strain 412 

frozen  feet  as 408 

general  illustrations  of  under  federal  act  of  1908 408 

infection  of  hand  and  secondary  infection  of  leg  as 409 

inhalation  of  dust  into  lungs 410 

lead   poisoning   as 410 

severe  cold  resulting  in  pneumonia  as 408 

strain  from  too  fast  working  as 412 

sunstroke   as    409 

typhoid  fever  from  contaminated  drinking  water 411 

under  federal  law 403 

use  of  under  federal  act  of  1908 404 

vaccination  at  orders  of  superior  as 409 

PENSION — as  affecting  average  earnings 182 

PERFORMANCE  OF  DUTY— while  in  the 412 

PERITONITIS    71 

from  operation 240 

PERMANENT   PARTIAL    DISABILITY 157 

defined  143 

though  earning  'power  unimpaired 159 

PERMANENT  TOTAL  DISABILITY— defined 143 

PHALANGE— 

see  also  FINGERS. 

outer,  of  third  finger  equals  loss  of  half  finger 167 

PHYSICIANS,  see  TREATMENT  OF   INJURIES. 

PHYSICAL  EXAMINATION— 

effect  of  unreasonable  refusal  to  submit  to 231 

employee  may  have  his  physician  present  &t 234 

employee  must  submit  to  when  reasonable 234 

employer  must  furnish  duly  qualified  physicians 234 

federal  act,  under 447 

must  be  had  at  reasonable  times  and  places  and  under  rea- 
sonable conditions   .  23 1 


536  MANUAL  OF  COMPENSATION  LAW 

Page 

PHYSICAL    EXAMINATION— Continued- 
reasons  for  privilege  of 234 

refusal  or  obstruction  of 235 

refusal  to  allow  as  a  defense  to  compensation 264 

PIECEWORKER— 

as  employee  8 

when  not  independent  contractor 9 

PNEUMONIA  71 

following  peritonitis  240 

following  severe  cold 408 

POISONOUS  FLUID — employee  drinking,  thinking  it  to  be  water  137 

POLICEMEN— 

as  public  officers  19 

as  employees 18,  19 

POOR  FUND — money  from,  as  affecting  average  earnings 182 

POSTHUMOUS— children  under  federal  act 433 

POST-OPERATIVE    PNEUMONIA    87 

POWERS,  see  ACTS  IN   EXCESS  OF  POWERS. 

POWERS — of  boards  or  commissions 283 

PRE-EXISTING    DISEASE,    AGGRAVATED    BY    INJURY 76 

PREMISES— 

injury  on  while  going  to  be  paid  off 135 

of  master,  accidents  on 92,  97 

PRIOR    LIEN — right  of  compensation   is 315 

PROCEDURE— 

as  to  injuries  caused  by  third  persons  under  federal  act 448 

before  boards  simple  and  informal 283,  284 

of  acts,  not  inconsistent  with  due  process  of  law 354 

PROHIBITED      EMPLOYMENT— misrepresentation     of    age    by 

minor  to  obtain ^ 59 

PROHIBITED    EMPLOYMENTS— minors  in..: 56 

PROOF — necessary  of  liability  for  compensation 295 

PROXIMATELY  CAUSED  BY  ACCIDENT— meaning  of 66,  67,  68 

PTOMAINE   POISONING— from  sewer  gas 72 

PUBLIC  OFFICERS— 

are  not  employees 19 

firemen  as 19 

policemen  as    19 

PUBLIC  WORKS — Board  of,  as  employer 18 

PULMONARY   TUBERCULOSIS — from   exposure..                70 


INDEX  537 

0 

Page 
QUARRYMAN — as   independent   contractor 21 

QUESTION  OF  FACT— 

accident  as   86 

amount  of  lump  sum  to  be  paid  as 299 

arising  out  of  and  in  the  course  of  employment  is 139 

"as  soon  as  practicable"  is 255 

advisability  of  lump  sum  settlement  is 299 

average  weekly  wages  is 181 

casual   employment   is 26 

dependency  is    193,   195 

dependency  is,  under  federal  act 439 

dependency  of  non-resident  parents  is 196 

dependency  of  decedent's  parents,  brothers  and  sisters  is ....  196 

extent  of  permanent  partial  disability  not  scheduled  is 158 

incapacity  for  work  is 148 

malingering  is   277 

partial  dependency  is  199 

reasonableness  of  refusal  to  allow  examination  is 235 

reasonableness  of  refusal  to  follow  medical  advice  is 236 

reasonableness  of  refusal  to  submit  to  operation  is 236 

what  are  average  earnings 181 

whether  act  is  willful   is 280 

whether  disability  is  temporary  and  partial,  is 147 

whether  husband  and  wife  living  part  are  dependents 206 

whether  mother  and  sister  are  wholly  dependent 196 

whether  or  not  disfigurement  exists 178 

whether   there   was   mistake   or   other  reasonable   cause   for 
lack  of  notice 251 

QUESTION  OF  FACT  OR  LAW— willful  misconduct  is  mixed 269 

QUESTION  OF  LAW— 

accident    as    87 

amount  of  compensation  is 171 

existence   of   employment   is,   when 10 

method  of  computing  average  earnings 181 

QUESTION  OF  MIXED  LAW  AND  FACT— accident  as 87 

R 

RAILWAY  MAIL  SERVICE— federal  compensation  prior  to  1916..  390 
"REASONABLE     EXPENSE     INCURRED"— nursing    gratuitously 

by  members  of  household  is  not 232 

RECEIVE  R — as  employer   5 


538  MANUAL  OF  COMPENSATION  LAW 

Page 
REDUCTION— 

of  compensation,  for  advanced  age  not  applicable  when  there 

are  dependents   199 

of  compensation  for  disobedience  of  rules 268 

or  forfeiture  of  compensation  for  disobedience  of  rules. . .  .268,  270 
REFRESHMENT— injuries  while  seeking 101,  104 

REFUSAL  OR  OBSTRUCTION— 

failure  to  return  for  treatment  as 235 

of  physical  examination,  what  is 235 

to  go  outside  jurisdiction  is  when 235 

refusal  except  in  presence  and  in  office  of  legal  adviser  is ....  235 

REFUSAL   TO    SUBMIT   TO    OPERATION— reasonableness   of   a 

question  of  fact 236 

REGULARLY   EMPLOYED   IN   A   HIGHER   GRADE   OF   WORK— 

meaning   in    Kentucky 185 

REJECTION  OF  ACT— 

by  employer  precludes  acceptance  by  employee 43 

notice  of  effective  until  withdrawn 44 

RELATION   OF   EMPLOYER   AND   EMPLOYEE— 

see  EMPLOYER  AND  EMPLOYEE. 

must  exist  at  time  of  injury 10 

RELEASE— 

see  SETTLEMENTS  OR   RELEASES. 

by  employee  as  affecting  rights  of  dependents 215 

by  father  and  mother  does  not  affect  infant  dependents 216 

of  employee  to  third  person  does  not  affect  dependent  widow.  216 

REMEDIES— 

of  acts  exclusive  : 51-55 

of  employer  against  third  persons 308 

REPORT— 

of  accident  by  employer  is  evidence  of  facts  stated 292 

of  accident,  by  employer 313 

of  injuries,  who  to  make  under  federal  act 448 

RESCUE — of  fellow  employee,  injuries  from  within  act 122,  135 

RESPONDEAT  S U P E R I O R— doctrine  of,  at  law 344,  351 

RESULTING   FROM   ACCIDENTAL   INJURY— death 87 

REVIEW— 

boards  can  review  their  own  decisions . . .  .• 283 

of  court   is   limited 305 

settlement  for  disfigurement  not  subject  to 179 

to  what  limited    305 

RISK — when  incidental  to  employment 94 


INDEX  539 

Page 

RISK  COMMON  TO  ALL— 

death  by  lightning  as 108,  109 

not   covered    91,  94 

injuries  from  as  arising  out  of  employment 108 

RIGHT  OF  ACTION— 

see  ACTION  AT  LAW. 
at  law  abolished  51-55 

RIGHT  OF  RECOVERY — compensation  acts  do  not  take  away  with- 
out substituting  another 158 

RIGHTS — of  employer  against  third  persons 307 

RUBBER  GLOVES— failure  to  use  as  willful  misconduct 267 

RULES— 

boards  or  commissions  may  make 286 

disobedience  of,  injuries  from 137 

disobedience  of,  reduction  of  compensation  for 268 

forfeiture  of  part  compensation  for  disobedience  of 270 

of  employer,  disobedience  of  when  enforced. .  •. . .  .127,  128,  136,  137 
of  employer,  disobedience  of  when  not  enforced 129 

RUNAWAY  HORSE— driver  injured  by 5 

s 

SAFETY  RULE  OF  EMPLOYER — disobedience  of 270 

SALARY — none  during  compensation  period  under  federal  act..  427 

SCAR — as  disfigurement   178 

SCOPE  OF  EMPLOYMENT,  see  ARISING  OUT  OF  AND  IN  THE 
COURSE  OF  EMPLOYMENT. 

SCREW  CONVEYOR— injury  while  walking  on 268 

SCHEDULED  INJURIES— 

see  also  PARTICULAR  PART  INJURED. 
cannot  be  divided  into  and  scheduled  compensation  totaled . .  165 

compensation  for,  in  addition  to  medical  treatment 168 

compensation  for,  in  addition  to  that  for  subsequent  death . .  171 
compensation  for  injuries  to  finger  cannot  be  greater  than  loss  167 
compensation  for  injuries  to  several  fingers  cumulative,  not 

exceeding  amount  for  loss  of  hand 170 

impairment  of  member  not  loss 159 

impairment  of  vision,  how  compensated 173-177 

injuries   to   ear 177 

law  speaks  in  terms  of  disability  unless  injuries  are 160 

loss  of  four-fifths  vision  in  both  eyes 172,  173 

must  be  compensated  for  regardless  of  impairment  of  earn- 
ings        160 

mutilated  thumb  equal  to  loss  of  one  phalange 169 


540  MANUAL  OF  COMPENSATION  LAW 

Page 
SCHEDULED  INJURIES— Continued— 

'to   eyes    172 

to  fingers 165,  166 

where  in  addition  to  all  other  compensation 158,  171 

where  in  lieu  of  all  other  compensation 158 

SEASONAL  OCCUPATIONS — as  affecting  average  earnings 184 

SECRETARY — of  company  seeing  injured  man  once  a  week,  as 

notice   248 

SECTION    HAND— injury  to 104 

SELF-INFLICTED   INJURY— 

accident  while  workman  is  warming  himself  between  cars  is 

not    131 

as   defense   to   compensation 265 

federal  act    423 

SEPTICAEMIA    70-71 

SETTLEMENT— 

see  also  SETTLEMENTS  OR  RELEASES. 

by  employee  as  affecting  rights  of  dependents 215 

by    employee   with   third   person    does   not   affect   dependent 

widow  216 

for  disfigurement  final  when 179 

SERIOUS   AND    WILLFUL    MISCONDUCT,   see    WILLFUL    MIS- 
CONDUCT. 
SETTLEMENTS  OR  RELEASES— 

see  LUMP  SUM  SETTLEMENTS. 

amicable    generally    encouraged 296 

approved  agreement  becomes  enforceable  award 297 

between  employer  and  employee  do  not  discharge  third  per- 
sons        298 

by  attorney  good  even  though  exceeding  authority 298 

by   employee    before   death   with    third    person,    as    affecting 

widow's    claim 298 

by  guardian,  does  not  bar  action  where  minor'  illegally  em- 
ployed     s 298 

by  widow,  no  bar  to  claims  of  dependent  children 298 

do  not  bar  suit  against  doctor  for  malpractice 298 

must  be  made  in  good  faith 296 

of  employee  with  third  persons 311 

sharp  or  slick  tactics  not  allowable 296 

when  bar  further  claim 297 

when  can  be  set  aside 292 

voluntary  payments  of  compensation  can  be  made  without . . .   296 
SHELTER — from  storm,  injuries  while  seeking 132 


INDEX  541 

Page 

SICK-LEAVES — annual  added  to  compensation  under  federal  act  428 

SICKNESS — as  affecting  average  earnings 190,  191 

SISTER,  see  DEPENDENTS. 

SIDEWALK — injury  by  fall  on,  while  going  from  master's  prem- 
ises to  place  where  ordered 98 

SKIFF — overturning  of  due  to  intoxication  of  boatman 276 

SLACK  BUSINESS  CONDITIONS— as  affecting  disability 145 

SON— 

see  DEPENDENTS. 

when  not  employee  of  father 9 

SPECIFIC  STATUTE — failure  of  employer  to  comply  with 322 

SPEEDING — in  automobile,  willful  misconduct 267 

SPORTIVE  ACTS — 

as  arising  out  of  and  in  course  of  employment 105-103 

covered  where  injured  takes  no  part  in 105 

games  at  noon  hour 417 

girl   in   toilet   room   thrusting   scissors    into   eye   of   another 
through  crack   107 

STAIRS — injury  on  though  not  owned  by  employer 103 

STATE— 

and  its  political  subdivisions  as  employers 15 

when  liable  for  torts  of  agents  at  law 11 

STATE,     COUNTY,     MUNICIPALITY      AND      GOVERNMENTAL 

AGENCIES — under  the  acts  in  general 14 

STATE  FIRE  WARDEN'S  DEPARTMENT— as  employer 16 

STATE  FUND — insurer  in  New  York,  has  no  appeal 306 

STATUTE— 

specific,  failure  to  comply  with 322 

willful  and  known  violation  of 322 

STOPPAGE  OF  WORK — as  affecting  average  earnings 183,  189 

STORM — injuries  while  seeking  shelter  from 132 

STRAI N — continuous,  injury  due  to 412 

injury  caused  by  time-record  efficiency  system 412 

STRAW-BOSS— notice    to    not    sufficient 249 

STREET— 

accidents  on   94,  95 

accident  on  while  going  to  place  of  work  under  orders  of  mas- 
ter       98 

employee  killed  by  automobile  oh 112 

where  duties  are  all  on 95 

STREET  CAR — collision  with  truck 311 

STRIKE— 

general,  as  affecting  average  earnings 189 

sympathetic,  as  affecting  average  earnings 190 


542  MANUAL  OF  COMPENSATION  LAW 

Page 

SUB-CONTRACTORS — relation   to   contractors 24 

SUBNORMAL — compensation  when  for  benefit  of 76 

SUBROGATION — of  insurer  to  rights  of  employer  against  third 

persons    309 

SUI  JURIS— minors  made   i 56 

SUITABLE  WORK — no  compensation  under  federal  act  when  re- 
fused        427 

SUICIDE— 

cannot  be  inferred  from  finding  of  body  in  canal 112 

death  from  as  arising  out  of  employment 110-112 

or  accident,  presumption  favors  accident 112 

SUNSTROKE— injuries  from  115 

SURGEONS,  see  TREATMENT  OF  INJURIES. 

T 

TAXICAB   DRIVER   ON   SHARES — as  independent  contractor...  24 
TEAMSTER— 

as  engaged  in  hazardous  work 13 

as  independent  contractor 23 

delivering  coal  for  dealer  as  casual  employee 28 

TELEPHONE   MESSAGE— as  notice  of  accident 249 

TEMPORARY   DISABILITY— distinguished  from  total 172 

TEMPORARY    PARTIAL    DISABILITY— defined 143 

TEMPORARY  TOTAL  DISABILITY— 

defined    143,  144 

TENDONS— of  fingers,  injuries  to 166 

TETANUS    71 

THIRD  PERSONS— 

effect  of  settlement  by  employee  with 311 

effect  where  both  employer  and  third  person  have  elected  act  308 

employee  need  not  give  employer  notice  of  election  to  sue . .  307 

employer  can  assign  right  of  action  against 309 

employer  can  only  recover  what  act  makes  him  liable  for, 

from    309 

federal   act,   injuries   caused   by 448 

federal  act,  procedure  in  regard  to 448 

injuries  caused  by,  in  general 307 

insurer's  subrogated  to  rights  of  employer  against 309 

not  exempt  from  action  because  of  acceptance  of  act 308 

rights  and  remedies  of  employer  against 308 

settlement  with,  a  bar  although  rights  as  to  compensation  re- 
served                                                                                            .  311 


INDEX  543 

Page 

THIRD  PERSONS— Continued- 
settlement  with,  held  not  bar  to  claim  of  widow  for  death 311 

settlement  with,  is  a  bar  to  compensation  when 311 

where  employer's  negligence   contributed,  no  action  against  309 
THOUGHTLESS   OR    CARELESS— action   is  not  willful   miscon- 
duct       265 

THUMB — mutilated,  equals  loss  of  one  phalange  of 169 

TIME  CLOCK— 

employee  running  to  punch  after  playing  ball 415 

employee  running  to  punch  after  work 101 

TIME  KEEPER — notice  to  not  sufficient 248 

T  I  PS — when  included  in  average  earnings 181 

TOE — amputation  of  great 226 

TOILET   FACILITIES — seeking,  as  arising  out  of  employment..  112 
TOOTH— 

artificial,   loss   of 178 

loss  of  as  disfigurement 178 

TOTAL  DEPENDENCY,  see  DEPENDENCY  and  DEPENDENTS. 
TOTAL  DISABILITY— 

see  DISABILITY. 

under   federal    act 426 

TOTAL  INCAPACITY  FOR  WORK— 

loss  of  second  eye  as  causing 151 

when  inability  to  procure  work  is 146 

TOWN  OR  CONTRACTOR— as  employer 17 

TRAUMA — conditions  following   72 

TREATMENT   OF    INJURIES— 

see  also  PHYSICAL  EXAMINATION, 
see  also  REFUSAL  OR  OBSTRUCTION, 
see  also  UNREASONABLE  REFUSAL. 
award  for  physician's  fee  not  good  unless  person  named  and 

amount   given    226 

compensation  conditional  on  operation  at  proper  time 238 

cost  of,  is  on  employee  when 224 

delirium,  acts  contrary  to  orders  done  in 239 

duty  of  employee  to  give  reasonable  notice  of,  need  of 229 

employee  bound  to  submit  to  operation  where  risk  is  slight. . .  239 
employee  cannot  refuse   employer's  doctor  unreasonably ....  224 
employee  dissatisfied  with  first,  unable  to  find  second  phy- 
sician of  employer,  goes  to  own  physician 224 

employee   may   change   physicians   when 225 

employer  may  select  physician •. . .  224 

employer  must  furnish  medical  aid,  etc 222 


544  MANUAL  OF  COMPENSATION  LAW 

Page 
TREATMENT  OF   INJURIES — Continued — 

employer  must   have   knowledge   of   injury 228 

employer  must  have  reasonable  opportunity  to  furnish  treat- 
ment    228 

employer   may   change   physicians   when 225 

employer  not  liable  for,  when  reasonable  notice  is  not  given  230 

exercise,  failure  to  take 238 

first  aid  222 

"furnish"  in  connection  with 223 

"furnish"  means  more  than  passive  willingness 223 

injury  developed  by  as  arising  out  of  and  in  course  of  employ- 
ment     129 

insurance  carrier  has  all  rights  of  employer  as  to 224 

liability  for  in  addition  to  scheduled  compensation 168 

malpractice  as  affecting  compensation 241 

medical   examinations   and   fees   under   federal   act 447 

medical,  surgical  and  hospital  fees 225 

nursing,  gratuitously  by  members  of  household  not  "reason- 
able   expense    incurred" 232 

nursing,  included  in  "medical  and  surgical  treatment" 231 

nursing,  only  covered  when  nurse  is  hired  by  physician....  231 
opinion  divided  as  to  liability  of  employer  for  malpractice. 241-242 

physical  examination,  reasons  for  privilege  of 234 

physician  can  not  recover  for  services  employee  is  entitled 

to   from   him    225 

physician's  charges  based  on  employee's  ability  to  pay.. 226,  227 
reasonableness  of  refusal  to  allow  examination,  question  of 

fact    235 

reasons  for  provisions  for  medical  attention 221 

"refusal  or  obstruction"  of  physical  examination,  what  is....  235 

refusal  to  follow  medical  advice 238 

refusal  to  go  to  hospital 238 

refusal  to  submit  to,  as  defense  to  compensation 264 

refusal  to  submit  to  operation  for  femoral  hernia  not  unrea- 
sonable    241 

refusal  to  submit  to  simple  operation  free  from  danger 237 

refusal  to  submit  to,   unreasonable  when   his   own  and   em- 
ployer's doctors  agree 236 

refusal  to  submit  to  when  doctors  disagree 237 

refusal  to  undergo  third  operation  when  two  had  been  per- 
formed     : 237 

serious  operation  refusal  to  submit  to *. 240 

subsequent   treatment,   failure   to  return   for 235 

three  weeks  delay  in  notice,  too  long  to  hold  employer  for 229 


INDEX  545 

Page 

TREATMENT  OF   INJURIES— Continued— 

under   federal    act 428 

unnecessary,  and  excessive  physicians'  charges 228 

unreasonable  refusal  to  submit  to  operation  or  follow  medical 

advice    236 

when  employee's  conduct  is  reasonable 239 

when  employee  can  select  physician 224 

when  operation  dangerous  and  good  results  doubtful 238 

TRUCK  DRIVER — crushed  to  death  by  horse  in  stall 133 

TUBERCULOSIS — 

acute  and  active    77 

miliary   70 

of  glands  following  slight  blow  on  jaw 408 

pulmonary    70 

superinduced  by  brass  poisoning 412 

TYPHOID   FEVER— 

followed  by  pneumonia  and  empyema  as  personal  injury....  411 

from  drinking  water 81,  411 


u 

UNIONS — labor,  regulations  as  affecting  average  earnings 188 

UNITED   STATES — who  is   employee   of 400 

UNREASONABLE    REFUSAL— 

to  follow  medical  advice 238 

to  go  to  hospital 238 

to  take  exercise 238 

to  submit  to  operation  or  follow  advice,  effect  on  compensa- 
tion     237 

to  submit  to  operation  or  follow  medical  advice 235 

to  submit  to  serious  operation  is  not 239,  240 

to  undergo  simple  operation  free  from  danger 237 

to  undergo  third  operation  when  two  had  been  performed 237 

when  all  doctors  agree 236 

when   employee's   conduct   is   reasonable 239 

when  employee's  doctor  disagrees  with  those  of  employer 237 

when  doctors  disagree  as  to  danger  from  anaesthetic 237 

when  operation  dangerous  and  good  result  doubtful 238 

UTILITY  MAN — when  engaged  in  hazardous  employment 12 


546  MANUAL  OF  COMPENSATION  LAW 

V 

Page 

VACCINATION — disability  caused  by  as  personal  injury 409 

VAUDEVILLE  ACTRESS — as  independent  contractor 23 

VEHICLES— injuries  from  use  of 136 

VERDICT— 

of  jury  cannot  be  treated  as  award  of  compensation 54 

of  jury,  finding  of  fact  on  same  footing  as 289 

VESTED   INTEREST— 

award  as   201 

no  one  has  in  common  law  defenses 48 

VILLAGE — as  employee  of  citizen  assisting  village  marshal 18 

VISION— 

see  EYES. 

impairment  of  how  computed 173-177 

VOLUNTARY  ACCEPTANCE  OF  ACT— by  exempted  persons. .  .34,  60 
VOLNTARY  PAYMENT — of  compensation  without  agreement..  296 
VOLUNTEER — workman  injured  while  acting  as  not  covered 415 

w 

WAGES — 

see  AVERAGE  EARNINGS. 

earned  from  different  employers  as  affecting  average  earn- 
ings       185 

failure  to  stipulate  does  not  make  employment  casual 29 

fluctuation  of,  as  affecting  average  earnings 190 

paid  to  employee  between  injury  and  award  as  deduction 314 

probable  increase  of  minor's,  as  affecting  amount  to  be  paid 

dependents    205 

weekly,  when  not  fixed  under  New  Jersey  act. 187 

WAGON— 

breaking  neck  in  fall  from  due  to  intoxication 273,  274 

furnished  by  employer,  injury  while  riding  from  work  on 100 

WAITER — who  worked  when  required  by  caterer  as  casual  em- 
ployee      27 

WAITING    PERIOD— 

day  of  injury  counted  as  first  day  of  disability 424 

days  of  disability  need  not  be  consecutive 425 

in  general 142 

no  claim  can  be  made  for  disability  during 142 

under  act  of  1908 424 

under  federal  act  of  1916 423 

WAREHOUSING — wholesale  grocery  company  is  not  engaged  in 

the   business    of . .  13 


INDEX  547 

Page 

WASHINGTON   ACT— tested  in  U.  S.  Supreme  Court 364-383 

WHILE    IN   THE    PERFORMANCE    OF    DUTY— meaning 412 

WHITEWASH ER — as  independent  contractor 23 

WHOLLY  DEPENDENT,  see  DEPENDENCY  and  DEPENDENTS. 
WHOLESALE   GROCERY — employee,   not  engaged   in  hazardous 

work    13 

WIDOW— 

see  DEPENDENTS. 

of  employee,  who  is  under  federal  act 432 

WIFE  AND  HUSBAND— as  dependent  on  each  other 205-212 

WILLFUL  ACT — of  employer,  meaning 319 

WILLFUL   AND    KNOWN    VIOLATION    OF   STATUTE— in  Ken- 
tucky       322 

WILLFUL    MISCONDUCT— 

as   defense    265-268 

as  proximate  cause  of  injury 417 

attempting  to  jump  on  ferry  boat  which  had  left  dock 422 

burden  of  proof  as  to  on  employer 280 

contributory  negligence  distinguished  from 270 

defined    265 

disobedience  of  positive  rules  or  instructions 423 

distinguished  from  percentage  of  forfeiture  for  disobedience 

of  rules   270 

of  employer,  compensation  not  barred  because  of  failure  of 

action  at  law  for 324 

exchange  of  shots  by  night  watchman  and  sheriff  by  mistake 

as    267 

getting  off  a  moving  train  between  cars 419 

implies   positive   wrongdoing 270 

intoxication   as    272 

is  deliberate  not  merely  a  thoughtless  act 267 

is  jurisdictional   question 267 

is  mixed  question  of  law  or  fact 269 

lineman  failing  to  use  rubber  gloves  provided  was  guilty  of  266 

not  necessarily  criminal  conduct 270 

remaining  in  trench  after  being  twice  told  to  come  out 421 

risking  life  to  save  fellow  employee  is  not 123 

rules  must  be  reasonable,  known  to  employee  and  enforced  423 

seeking  shelter  under  train  against  orders 421 

speeding  in  automobile  as 267 

taking  foolhardy  or  needless  risk  against  orders 420 

thoughtless  or  careless  action  is  not •  265 

under  federal  act  of  1908 . .  418 


548  MANUAL  OF  COMPENSATION  LAW 

Page 

WILLFUL    NEGLIGENCE— of    employee 271 

WILLFUL   SELF-INFLICTED    INJURY— as   defense   to   compen- 
sation      265 

WORK— 

accidents  going  to  or  from 96 

disability   for   particular  not   total 154 

incapacity   for,   as   disability 148 

inability  to  obtain,   as   total  disability 169 

inability  to  procure,  as  disability 146 

stoppage  of  as  affecting  average  earnings 183,  189 

suitable,  no  compensation  under  federal  act  when  refused. .  427 

WORKING  HOURS— accidents  before  or  after 96 

WORKMEN'S  COMPENSATION   BOARD,  see  BOARDS  OR  COMMIS- 
SIONS. 

WRIST — injuries  between  elbow  and,  as  to  hand 165 

WRONGFUL   ACT — death  by,   recovery  for,   a  modern   statutory 

innovation     .   346 


Av  B.  RENEIIAN, 

Attorney  at  Law 
SANTA  FE.  W.  M. 

deceived 


